New South Wales Supreme Court CITATION : Guardian Co-operative Housing Society v Pritchard & Anor [2002] NSWSC 1002 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11733 of 2000 HEARING DATE(S) : 21 October 2002 JUDGMENT DATE : 21 October 2002 Guardian Co-operative Housing Society (formerly Guardian OPSM Co-operative Housing Society) (Plaintiff) PARTIES : v Keith Arthur Pritchard (First Defendant) Rima Pritchard (Second Defendant) JUDGMENT OF : Master Malpass COUNSEL : N/A (Plaintiff) N/A (Defendants) Cichero McLean & Menzies (Plaintiff) SOLICITORS : In Person (First Defendant) N/A (Second Defendant) CATCHWORDS : Default Judgment in possession - erroneous direction by registrar to file a defence - no arguable defence - filed purported defence a nullity and abuse of process - purported defence struck out. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See Paragraphs 7 - 9. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Monday 21 October 2002 11733 of 2000 Guardian Co-operative Housing Society (formerly Guardian OPSM Co-operative Housing Society) v Keith Arthur Pritchard & Anor JUDGMENT 1 Master: The plaintiff brought these proceedings to recover a judgment in possession. The defendants are the owners of the subject premises. They live in the premises. They are unrepresented. The first defendant appears today to put arguments on behalf of both of the defendants. 2 A default judgment was obtained on 22 November last year. This judgment has not been set aside. 3 Despite the fact that such judgment remained on foot, Registrar Robinson gave a direction for the filing of a defence. It should have been filed on 31 May to comply with the directions. The purported defence was not filed until 4 June 2002. 4 I have read through the defence. It is one that has been prepared by the defendants themselves. The plaintiff's case is founded on default under the mortgage. The purported defence does not raise any matter which could be a defence to that claim. It is significantly concerned with a matter of the quantification of the indebtedness of the defendants. 5 Be that as it may, the filing of a defence was a futile exercise and an abuse of process. It was filed in response to an erroneous direction and can only be a nullity. For completeness, I should add that in the circumstances of this case, the defendants have not demonstrated an entitlement to have the judgment set aside. 6 What the defendants are continuing to do is to frustrate the resolution of these proceedings. Such conduct is wasting costs and the valuable time of this Court. 7 The plaintiff is entitled to have the defence struck out. Accordingly, I so order. The defendants are ordered to pay the costs of the plaintiff's notice of motion. 8 For the assistance of the defendants, I repeat what I have earlier said many times to the first defendant. If he wishes to pursue the question of the quantification of indebtedness under the mortgage, he should initiate the appropriate proceedings to do so. I have suggested that the taking of an account in the Equity Division may be one solution to his problems. I have also suggested that it would be helpful for him to get legal advice. 9 I am also asked to deal with the notice of motion filed on 13 May 2002 by the defendants. For the reason already advanced, I order that it be dismissed. I order that the defendants pay the costs of that notice of motion. ********** Last Modified: 10/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.