ANZ Banking Group Ltd v Capper & Ors [2002] NSWSC 759

New South Wales Supreme Court

CITATION : ANZ Banking Group Ltd v Capper & Ors [2002] NSWSC 759 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12957/00 HEARING DATE(S) : 14, 15 & 19 August 2002 JUDGMENT DATE : 19 August 2002

ANZ Banking Group Limited PARTIES : Mr Terry Capper Ms Robyn Grace Capper Mr Steven Nicol JUDGMENT OF : Sperling J at 1

COUNSEL : Mr J T Johnson for the Plaintiff Mr R Killalea for the First and Second Defendants SOLICITORS : Acuiti Legal for the Plaintiff D J Chapman, Solicitors, for the First and Second Defendants CATCHWORDS : No question of principle DECISION : 1. Notice of motion dismissed; 2. Costs of the notice of motion reserved.

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Possession List

Sperling J

Monday, 19 August 2002

12957/00 ANZ Banking Group Ltd v Terry Capper & Ors

Judgment 1 His Honour: On resumption of the hearing today, counsel for the defendants moved to strike out the plaintiff's statement of claim. 2 A notice of motion dated today was filed in court, with a qualification that reserved the question as to whether the defendants ought to be permitted to proceed as proposed in the notice of motion. 3 The notice of motion was supported by an affidavit sworn by Mr T Capper, one of the defendants, on 19 August 2002. That affidavit was filed in court and read with the same qualification. Two bases were propounded on behalf of the defendants, as to why the defendants should be permitted to proceed with a notice of motion to strike out the statement of claim at this stage, and in support of the motion itself. 4 The substantive argument in support of the notice of motion had two limbs. The first was as follows. By paragraph 13 of the statement of claim, the plaintiff asserts that, on or about 17 February 1999, the company Samphire Pty Ltd failed to make a periodic payment pursuant to the terms of the facility account agreement with the plaintiff, providing the basis asserted by the plaintiff (so the argument ran) for the acceleration of liability for repayment of the whole of the moneys advanced, and for the issue of various notices upon which the plaintiff's ultimate claim depends. 5 The affidavit of 19 August 2002 annexes correspondence, including a letter providing further and better particulars of the plaintiff's claim, written by Finlaysons, solicitors, then acting for the plaintiff, in which, in paragraph 11, it is stated that the date 17 February 1999 in paragraph 13 of the statement of claim, as the date of default, is confirmed to be incorrect; and that the correct date for the non-payment giving rise to the plaintiff's claim in that regard is 7 July 2000. 6 It is said, on behalf of the defendants, that the court should accordingly proceed on the basis that the date appearing in paragraph 13 of the statement of claim and, accordingly, the basis of the plaintiff's claim is admitted by the plaintiff to be incorrect; and that the statement of claim should therefore be struck out. 7 What is advanced on behalf of the defendants in reliance on the letter is, at its highest, evidence capable of constituting an admission on behalf of the plaintiff that no moneys were owing on 17 February 1999 as asserted in the statement of claim. 8 The evidence is potentially relevant to a factual issue arising for determination in the proceedings. The question is whether it ought to be decided on a strike out application brought at this stage. 9 To entertain a notice of motion it would be necessary, in effect, to conduct a mini trial within a trial. The letter is not conclusive evidence that there was no default as pleaded. The plaintiff would have to be given an opportunity of responding to what is now asserted with the possible consequence that evidence might be adduced on behalf of the plaintiff on the issue. In any event, the court would be required to entertain argument concerning the implications for the ultimate issues in the case of the factual issue which lies at the basis of the application to strike out. 10 The defendants' point is as good in the cause as it is under the notice of motion. Indeed, because of the well-known principles that apply in relation to a strike out application, the value of the point in the cause is, if anything, more likely to carry weight than under a strike out application so far as the outcome of the cause and a strike out application respectfully are concerned. 11 There is no irreparable prejudice to the defendants if the notice of motion is not entertained, in the sense that the point they wish to argue would not be lost. 12 As to the second point raised in support of the notice of motion, that relates to paragraphs 41 and 42 of the statement of claim and, in particular, the amendment that has been granted in relation to the number of days specified in paragraph 42 and to the debate which has occurred, earlier in the proceedings and earlier today, concerning a proposed further amendment to the defendants' defences in relation to the service of a notice, a copy of which has been produced and which has become exhibit D in the proceedings. 13 The argument in that regard has been recorded. It does not seem to me to carry the defendants notice of motion forward. 14 It is of considerable relevance so far as the first point is concerned that the defendants have been aware of the position in relation to the date in paragraph 13 of the statement of claim since receipt of the letter of 9 May 2001. If there was a basis for striking out the statement of claim in reliance upon what is said in that letter, it is a basis which has existed since then, or since shortly thereafter. 15 In the circumstances which I have delineated, it would be unfair to the plaintiff, and inconsistent with the orderly disposition of these proceedings for the court to allow the notice of motion to strike out the statement of claim to be entertained at this stage. 16 For those reasons, without determining the merits of the notice of motion but because of the time at which and the context in which it has been brought forward, the notice of motion is dismissed. 17 I reserve the costs of the notice of motion. -oOo-