St George Bank Limited v John Wilson & Anor. [1999] NSWSC 1150

New South Wales Supreme Court CITATION : St George Bank Limited v John Wilson & Anor. [1999] NSWSC 1150 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11203/99 HEARING DATE(S) : 4 August 1999 JUDGMENT DATE : 30 November 1999

PARTIES : St George Bank Limited - Plaintiff John Wilson & Anor - Defendants (John Wilson in person) JUDGMENT OF : Simpson J at 1

COUNSEL : Plaintiff - S Reuben SOLICITORS : Plaintiff - David Landa Stewart CATCHWORDS : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Scanlan's New Neon Limited v Tooheys Limited (1944) 62 WN (NSW) 53 CASES CITED : Stephenson v Garnett [1898] 1 QB 677 Wilson v St George Bank Limited, unreported, 17 September 1996) Master Greenwood Garcia v National Australia Bank Ltd (1989) 194 CLR 395 DECISION : Summary judgment for the St George Bank

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Tuesday 30 November 1999

11203/99 ST GEORGE BANK LIMITED v John WILSON Judgment

HER HONOUR : 1 The present proceedings were commenced by statement of claim filed on 19 May 1999. 2 The plaintiff, St George Bank Limited (to which I will refer, for convenience, as "the Bank") claims possession of certain land of which the defendants are jointly the registered proprietors. The basis of the claim is expressed to be default by the defendants under the terms of the mortgage to which the land was subject. On 2 July 1999 the first defendant, John Wilson, acting on his own behalf, filed a defence to the statement of claim. On the same date Mr Wilson, purporting to act on behalf of the second defendant, his wife (Laraine Joy Wilson) filed a document under a cover sheet entitled "Defence of Second Defendant". Annexed to this document was a hand-written letter, apparently signed by the second defendant. It will be convenient hereafter to refer to the two defendants by their names. 3 By notice of motion the Bank seeks orders that each defence be struck out and that summary judgment be entered on the statement of claim. SCR Pt 15 r 26 was cited as the statutory authority for the making of the first order sought, and SCR Pt 13 r 2 as the authority for the second. By Pt 15 r 26 the court is empowered to make such an order, relevantly, where the pleading: (a) discloses no reasonable defence; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. 4 Pt 13 r 2 permits summary judgment to be entered for a plaintiff where: (a) there is evidence of the facts on which the claim is based; and (b) there is evidence given by the plaintiff or some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim. 5 At the commencement of the hearing into the Bank's notice of motion Mr Wilson appeared unrepresented. He filed in court an affidavit sworn by his wife, the substance of which was as follows: "I have no desire to attend the Supreme Court of New South Wales at any time to participate in any way in these proceedings in person nor to be represented by legal counsel." 6 Mr Wilson made clear that he claimed the right to have all issues, including issues of law, determined by a jury. I ruled that the issues raised by the Bank's notice of motion were issues of law only, and fell to be decided by a judge sitting without a jury. On hearing that ruling, Mr Wilson left the court. The matter thereupon proceeded in the absence of both defendants.