JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1999] NSWSC 760

New South Wales Supreme Court CITATION : JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1999] NSWSC 760 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 20101/1999 HEARING DATE(S) : 13 July 1999 JUDGMENT DATE : 29 July 1999

DRAGO JAMBRECINA PARTIES : v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) & ANOR. JUDGMENT OF : Master Malpass

COUNSEL : PLAINTIFF: N/A DEFENDANTS: MR S T WHITE SOLICITORS : PLAINTIFF: IN PERSON - UNREPRESENTED DEFENDANTS: CLAYTON UTZ CATCHWORDS : Leave to proceed; summary disposition; striking out defective pleading; no question of principle. ACTS CITED : Corporations Law, s 471B. Supreme Court Rules 1970, Pt. 15. CASES CITED : Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. DECISION : SEE PARAGRAPH 21

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 29 JULY 1999

20101/1999 DRAGO JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) & ANOR. JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 19 March 1999. The process seeks to propound inter alia a monetary claim for loss and damage. There are two named defendants. 2 On 17 September 1987, the plaintiff gave a mortgage to Combined Mortgage Services Pty Limited over a number of properties. It secured a loan in the sum of $458,800.00. Combined Mortgage Services Pty limited subsequently changed its name to Farrow Mortgage Services Pty Limited (it is the second named defendant). It later assigned the benefit of the mortgage to the first named defendant. 3 In or about December 1990, default was made under the mortgage. This led to the first defendant bringing proceedings 10647 of 1992 (the earlier proceedings). The proceedings were brought by Summons and inter alia the possession of certain property was sought. The proceedings were brought against both the plaintiff in these proceedings and his wife. Affidavits were sworn and filed on behalf of all parties (including affidavits which raise some of the complaints made by the plaintiff in these proceedings). The proceedings were settled. Short Minutes of Order were prepared (dated 17 December 1992). Subsequently, a judgment was entered on 2 March 1993. The judgment gave inter alia possession to certain properties. 4 On 19 March 1999, the plaintiff filed a Notice of Motion. As the defendants have been in liquidation for many years, it seeks an order for leave to sue the defendants. On 27 April 1999, the defendants filed a Notice of Motion. It seeks either summary dismissal of the proceedings or the striking out of the Statement of Claim. 5 The hearing took place on 13 July 1999. The plaintiff appeared in person. The defendants were represented by counsel. 6 The evidence consisted of an affidavit sworn by the plaintiff, an affidavit sworn on behalf of the defendants (by Brigitte Sandra Markovic) and documentation tendered by the parties. 7 The parties have prepared written submissions. The writing was supplemented by oral argument. 8 On behalf of the defendants, the approach is taken that unless a case for relief is demonstrated by them leave should be given to the plaintiff. The plaintiff was uncertain as to the source of power for the relief sought by him. The defendants have assumed that he was relying on s 471B of the Corporations Law . Ultimately, the parties proceeded on the basis that the application was being made pursuant to that provision. 9 At this stage it is convenient to look at the plaintiff's originating process. The Statement of Claim itself is in the following terms:- "1. Plaintiff and Defendant had signed a mortgage document (real property ACT 1900) on the 17th of September 1987 in Queanbeyan NSW. Between the late 1990 and the late 1993, the defendant had breached agreements with in a document on many occasions in many ways. PARTICULARS of pleading are set out in additional documents attached.