New South Wales Supreme Court CITATION : National Australia Bank Limited v Darroch; National Australia Bank Limited v Bhatti [2010] NSWSC 1202 HEARING DATE(S) : 1 October 2010 JUDGMENT DATE : 20 October 2010 JUDGMENT OF : Harrison J 1. In matter 2008/283367: (a) The defence filed by the second defendant on 5 May 2009 is struck out. (b) Judgment for the plaintiff against Ms Bhatti for possession of the whole of the Linley Point property. DECISION : (c) Grant leave to the plaintiff forthwith to apply for an order for possession of the Linley Point property to enforce the judgment for possession 2. In matter 2008/285436: (a) The defence filed by the second defendant on 5 May 2009 is struck out. 3. Direct the plaintiff to file such affidavit evidence in the former matter as it may seek to rely upon in satisfaction of UCPR 16.4(3)(e) within seven days. In the event that the plaintiff complies with that direction, I will thereafter make the orders that I have foreshadowed, or such further or other orders, including orders as to costs, as may seem appropriate. CATCHWORDS : PRACTICE & PROCEDURE – possession list – UCPR 14.28 – application to strike out defence and cross-claim – defendant bankrupt – no election by Official Trustee to prosecute the cross-claim – where Official Trustee not proposing to defend the proceedings – where defendant had no more than a bare legal interest in the security property and no standing to appear or be heard – where defendant given leave to make submissions – defence had a tendency to cause prejudice, embarrassment and delay – plaintiff established prima facie entitlement to the orders sought LEGISLATION CITED : Bankruptcy Act 1966 (Cth) CATEGORY : Procedural and other rulings Ankar Pty Ltd v National Westminster Finance (Australia) Limited [1987] HCA 15; (1987) 162 CLR 439 Bendigo Bank Ltd v Demaria [2001] VSC 218 Carr and Purves v Thomas [2009] NSWCA 208 Commonwealth Bank of Australia v Terpou (Supreme Court of Western Australia, 30 March 1995, unreported) Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 CASES CITED : Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 Morkaya v Parkinson; Parkinson v Morkaya [2010] NSWSC 1194 National Australia Bank v Darroch [2010] NSWSC 1129 National Australia Bank v Strik [2009] NSWSC 184 State of Queensland v Beames [2003] QCA 39 Walker v Bowry [1924] HCA 28; (1924) 35 CLR 48 Proceedings No 2008/283367 National Australia Bank Limited (Plaintiff) Andrew David Darroch (First Defendant) PARTIES : Surbjit Kaur Bhatti (Second Defendant) Proceedings No 2008/285436 National Australia Bank Limited (Plaintiff) Surbjit Kaur Bhatti (Defendant) FILE NUMBER(S) : SC 2008/283367; 2008/285436 COUNSEL : J W J Stevenson SC with S E Gray (Plaintiff) D C McCallum - with leave (Second Defendant) DibbsBarker Lawyers (Plaintiff) SOLICITORS : Church & Grace (Official Trustee in Bankruptcy) Sweeney Tiggemann - with leave (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST HARRISON J 20 October 2010 2008/283367 National Australia Bank v Andrew David Darroch and Surbjit Kaur Bhatti 2008/285436 National Australia Bank v Surbjit Kaur Bhatti JUDGMENT 1 HIS HONOUR: The first of these matters came before me on 1 October 2010 and I published my reasons for judgment on 6 October 2010: see National Australia Bank v Darroch [2010] NSWSC 1129. These reasons assume a familiarity with what I said at that time. 2 In the Darroch and Bhatti matter, by amended notice of motion dated 11 October 2010, the plaintiff now seeks the following orders: (a) An order striking out the defence of the second defendant ( Ms Bhatti ) filed on 5 May 2009 pursuant to UCPR 14.28(1)(b) and/or (c). (b) An order striking out the cross-claim filed 5 May 2009 by Ms Bhatti pursuant to UCPR 14.28(1)(b) and or (c). (c) Judgment for the plaintiff against Ms Bhatti for possession of the whole of the Linley Point property [pursuant to UCPR 16]. (d) Leave to issue a writ of possession to enforce the judgment for possession of the Linley Point property. 3 In the Bhatti matter the plaintiff now seeks the following orders: (a) An order striking out the defence filed on 5 May 2009 pursuant to UCPR 14.28(1)(b) and/or (c). (b) An order striking out the amended cross-claim dated 4 June 2009 pursuant to UCPR 14.28(1)(b) and/or (c). (c) Leave to discontinue the amended statement of claim filed 22 July 2010. Background 4 Ms Bhatti became bankrupt on 4 August 2010. As a consequence, s 60(2) of the Bankruptcy Act 1966 applied to her when the matter last came before me and continues to apply to her now. There was no appearance for the Official Trustee on 1 October 2010 but Mr Pignone appeared for the Official Trustee on 11 October 2010. He did not seek to oppose the orders sought by the plaintiff or to make any election pursuant to that section. He informed me that no appeal by Ms Bhatti pursuant to s 178 of the Act against the Trustee's deemed election not to defend the proceedings or to prosecute the cross-claim had come to his notice. Mr McCallum of counsel, to whom I granted limited leave to appear on behalf of Ms Bhatti, confirmed that no such appeal had been lodged. 5 Following the sequestration of Ms Bhatti's estate, the Linley Point property vested forthwith in the Official Trustee. Thereafter Ms Bhatti had no more than a bare legal interest in it, which interest she held for the benefit of the Trustee: s 58(1)(a) of the Act. She likewise had no interest in the proceedings brought against her for possession of the property and had no standing to be heard to defend the plaintiff's claim: see Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 at 285; Bendigo Bank Ltd v Demaria [2001] VSC 218 at [18]; Commonwealth Bank of Australia v Terpou (Supreme Court of Western Australia, 30 March 1995, unreported) and National Australia Bank v Strik [2009] NSWSC 184 at [9] – [10]. 6 In Bendigo Bank Ltd v Demaria, McDonald J said this at [18]: "[18] Section 58(1)(a) and (2) of the Bankruptcy Act 1966 (C'th) provides: '(1) Subject to this Act, where a debtor becomes bankrupt; (a) The property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of s.156A, in that registered trustee; and (2) Where a law of the Commonwealth or a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property notwithstanding that it vests in equity in the trustee by virtue of this section, does not vest in law until the requirements of that law have been complied with.' On the second defendant becoming bankrupt, she had no more than a bare legal interest in the land being 16 Cureton Avenue, Mildura, which she held for the benefit of her trustee in bankruptcy, the third defendant. She has no interest in the proceedings brought against her for the recovery of that land and she therefore would have had no standing to be heard in that proceeding, if she had sought the same, in the defence of the plaintiff's claim; Farrow Mortgage Service v. Winfield (1992) 2 QLR 282. Further, the second defendant as a bankrupt has no right to prosecute proceedings to protect property of which she has been divested on bankruptcy. Cummings v. Claremont Petroleum [1996] HCA 19; (1996) 185 CLR 124 at 135-6, Brennan CJ, Waldron and McHugh JJ. Therefore, the second defendant has no standing to continue to defend the plaintiff's claim against her for possession of 16 Cureton Avenue, Mildura. " 7 This was reflected in what Johnson J had to say in National Australia Bank v Strik at [9] – [10]: "[9] I am satisfied that the Defendant has no more than a bare legal interest in the Wollongong property which he holds for the benefit of the Official Trustee, and that he has no interest in the proceedings brought against him for possession of the property and has no standing to be heard in defence of the Plaintiff's claim: Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 QdR 282 at 285; Bendigo Bank Ltd v Demaria [2001] VSC 218 at [18]. Mr White has drawn the Court's attention, appropriately, to the decision of Dodds-Streeton J of the Victorian Supreme Court in Re-Engine Pty Ltd v Fergusson (2007) 209 FLR 1 at 9-12 [50-[68], where reference was made to a number of decisions, including Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria . Dodds-Streeton J observed at 12 [67]-[68] that, although the authorities indicate that a bankrupt does not have locus standi or an entitlement to be heard, the Court has a discretion to permit a person to give evidence in answer to allegations of personal misconduct and that, in the unusual circumstances of that case, it would promote the due administration of justice to permit the person to be heard. Nothing said by her Honour undermines the principle concerning standing expressed in Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria . [10] The appropriate conclusion is that the Defendant has no standing to appear and make submissions and to tender evidence on the application. The Official Trustee has made clear its view that it does not wish to be heard and that the orders to be made are a matter for the Court." 8 Ms Bhatti has become divested by reason of her bankruptcy of both her interest in the property and the liability for her provable debts. As a bankrupt she has no right to bring or to prosecute proceedings to protect, enhance or add to the value of the property of which she has been divested. See, for example, Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124. Ms Bhatti has no standing to appear or to make submissions or to tender evidence on the plaintiff's applications. The Official Trustee has made it clear that he does not wish to be heard. 9 The plaintiff's action to recover possession of the property is not a provable debt for the purposes of ss 58(3) and 82 of the Act: see Farrow at 284. The plaintiff does not therefore require leave pursuant to s 58(3) of the Act. 10 The plaintiff contended that as the Official Trustee is not promoting the defence, and as Ms Bhatti has no standing to appear, the continued existence of the defence has a tendency to delay the proceedings. Alternatively, the plaintiff submitted that to allow the defence to continue to operate in the circumstances, where the Official Trustee has declined to elect to defend the proceedings, despite having the ability to do so under s 134(1)(j) of the Act, would otherwise amount to an abuse of the process of the Court. 11 On 6 August 2010 the Official Trustee served a notice on the plaintiff pursuant to s 60(3) of the Act with respect to Ms Bhatti's cross-claim. He had made no previous election under that section during the 28-day period referred to in the section. The cross-claim is now deemed to have been abandoned. The Official Trustee did not contend otherwise before me. The plaintiff argued that in these circumstances the cross-claim also should be struck out. 12 The plaintiff then argued that once the defence is dismissed or struck out, Ms Bhatti would be in default under UCPR 16.2(1)(c). In such circumstances, having regard to the plaintiff's application for possession of the property only, the plaintiff can apply under UCPR 16.4 for default judgment. 13 The plaintiff relied in that respect upon the affidavit of Helen Hien Thu Tran sworn 2 September 2010. UCPR 16.4 is in these terms: " 16.4 Default judgment on claim for possession of land (1) Subject to rule 36.8, if the plaintiff's claim against a defendant in default is for possession of land only, judgment may be given for the plaintiff for possession of land, as against the defendant, and for costs. (2) … (3) The relevant affidavit in support: (a) must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land: (i) as at the time the originating process was filed … (ii) … and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 , must contain a statement to that effect, and (b) in relation to each such person: (i) must state that the person's occupation of the land is not to be disturbed, or (ii) must state that the person is no longer in occupation of any part of the land, or (iii) must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed, as the case requires, and (c) if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default, and (d) must state the source of the deponent's knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and (e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating: (i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004 ), and (ii) how much is claimed on account of filing fees, and (iii) how much is claimed on account of the costs of serving the originating process, and (f) must state when and how the originating process was served on the defendant." 14 The affidavit is adequate except for the fact that it does not comply with UCPR 16.4(3)(e). This defect would need to be corrected before I made final orders in favour of the plaintiff in these applications. 15 Pursuant to the limited leave I granted, counsel for Ms Bhatti made submissions to the effect that the plaintiff's mortgage over the Linley Point property somehow ceased to operate or to be enforceable, in a way that was not adequately or clearly described, as the result of the release by the plaintiff of collateral securities over two other properties in Crown Street, East Sydney. Mr Darroch and Ms Bhatti were apparently co-owners of those properties so that the discharge of the plaintiff's security over them was beneficial to Ms Bhatti. Sub-paragraphs 26(d) and (e) of the defence are in these terms: "(d) In or about June 2002 and April 2004, the Bank, without the informed consent of Ms Bhatti, released and discharged as security for the debts claimed in the statement of claim collateral securities then held by the Bank namely:- (i) Mortgage No. *** over property at *** Crown Street, East Sydney; (ii) Mortgage No. *** over property at *** Crown Street, East Sydney. (e) By reason of the release and subsequent discharge by the Bank of the mortgages over *** Crown Street and *** Crown Street as collateral security for the debts claimed by the Bank, Mortgage No 5383211 over Linley Point became and was and is discharged and of no further force or effect." 16 At the conclusion of the hearing before me, the way in which what is there pleaded is said to have discharged the mortgage upon which the plaintiff currently relies remained obscure. No factual or legal basis for the contention was advanced. The plaintiff contended that there was none. 17 Accordingly, in an attempt to understand the assumed rationale for Ms Bhatti's enthusiasm for the current contest, I sought an explanation or identification from Mr McCallum of the perceived advantage or benefit that she is hoping to obtain by opposing the plaintiff's applications. I attempted to give that inquiry some context in the circumstances as I understand them, by highlighting the fact that whatever Ms Bhatti's personal position might be in respect of creditors who might prove in her bankruptcy, the Linley Point property secures a considerable sum of money that she is not personally in a position to pay. In other words, if the contention in the defence, that the Linley Point mortgage has been discharged in the way suggested, cannot be made good, which appears uncontroversial on the material available to me at present, there is no utility in her even seeking leave to appear. I was not given any satisfactory response to that inquiry. 18 In those circumstances, against the possibility that some reflection upon the question may have been of assistance to those advising Ms Bhatti, I indicated that I would reserve my decision whilst simultaneously inviting Ms Bhatti to furnish me with a written outline of submissions in support of any proposition she wished to advance by the end of the day. These submissions were promptly furnished and are referred to below. The plaintiff also responded to these submissions, and that response is also referred to below. Ms Bhatti's submissions 19 Ms Bhatti conceded that her right to appear in and to prosecute her cross-claims is impeded by her bankruptcy in that her right to do so is deemed to have been abandoned as a result of the Trustee's failure to elect. Similarly, Ms Bhatti's right to defend the proceedings commenced by the plaintiff does not vest in the Trustee, but the property answerable to the claim does. Ms Bhatti is therefore deprived of her interest in the proceedings and her standing to appear in them. She accordingly sought leave to be heard on the plaintiff's present applications. 20 Ms Bhatti contended that the matters that I should consider in this respect included the following. First, she is already a party to the proceedings and, in relation to her defences at least, has not ceased to be a party. Secondly, her cross-claims were said to go "hand-in-hand" with her defence inasmuch as they seek the same relief. Thirdly, whilst her status as a bankrupt deprives her of any interest in the Linley Point property, she submitted that an annulment of her bankruptcy was "likely". If that occurs, the abandoned proceedings will effectively be restored: State of Queensland v Beames [2003] QCA 39. Her interest in the land and her standing to appear in the proceedings will also be restored. Finally, Ms Bhatti is a proper contradictor of the plaintiff's claims. 21 Ms Bhatti has submitted that the power to strike out pleadings is discretionary and should only be exercised in plain and obvious cases. Once it appears that there is a real legal or factual question to be determined upon which the rights of the parties may depend, it is not competent for the Court to dismiss the action as frivolous or vexatious or as an abuse of the process of the Court: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-2. 22 Ms Bhatti contended that the defences and cross-claims raise real and arguable questions, which, if determined in her favour, would defeat the plaintiff's claim for possession. First, she contended that a surety is discharged from its obligations under a suretyship contract by the creditor's breach of that contract where the breach materially prejudices the interests of the surety. The principle applies so as to discharge the surety when the conduct on the part of the creditor has the effect of altering the surety's rights. Where the creditor has purported to alter the surety's rights though the surety has an interest in the principal contract, the creditor cannot be permitted to do so: Ankar Pty Ltd v National Westminster Finance (Australia) Limited [1987] HCA 15; (1987) 162 CLR 439. 23 Secondly, where a creditor releases one or some of a number of debtors jointly and severally liable for the same debt then all debtors are released. A release of collateral security will release the surety: Walker v Bowry [1924] HCA 28; (1924) 35 CLR 48; Carr and Purves v Thomas [2009] NSWCA 208. 24 Ms Bhatti contended that these principles applied here because the plaintiff discharged all securities other than that held over Linley Point and did so without Ms Bhatti's informed consent. Plaintiff's submissions 25 The plaintiff contested the suggestion made on her behalf that annulment of Ms Bhatti's bankruptcy was likely "within a short space of time", and the accompanying submission that the basis for plaintiff's present applications would thereby "evaporate". The bankruptcy can only be annulled if, among other things, she obtains letters of acquittal from her various creditors. That includes the plaintiff. Ms Bhatti is apparently contesting the plaintiff's entitlement to prove in her bankruptcy for all amounts specified in the plaintiff's proof of debt apart from a small credit card debt of some few thousand dollars. The plaintiff claims approximately $92,500 from Ms Bhatti and seeks to prove in her bankruptcy for that amount. The plaintiff contends that there is unlikely to be any resolution of the dispute about that amount that would be necessary for an annulment to be granted. 26 Moreover, that dispute will have to be resolved by the Official Trustee in the exercise of his or her power under s 102 of the Act to admit or reject the plaintiff's proof of debt or, if need be, by the Federal Magistrates Court on a review under s 104 of the Act. The dispute cannot be resolved in these proceedings because, as Ms Bhatti accepts, she no longer has an interest in the Linley Point property by virtue of her bankruptcy and her entitlement to appear in these proceedings is limited to a grant of leave to make submissions better to assist my consideration of her position and no more. 27 Ms Bhatti's submissions that she had an "arguable and not insubstantial" defence to the plaintiff's claim were met with the following submissions. First, Carr and Purves v Thomas related to a covenant not to sue or release a party in respect of its co-ordinate liability. The plaintiff has not released Mr Darroch. 28 Secondly, Ankar and Walker v Bowry concern the position of a surety. Ms Bhatti is not a surety but is a co-mortgagor and a principal debtor. Furthermore, she was also one of the proprietors of the Crown Street properties and enjoyed the benefit of the release of those properties as security for the debts claimed in the statement of claim. Ms Bhatti would appear also to be approbating the effect of the release of these securities whilst reprobating her continued obligation as a mortgagor for the remaining debts. The plaintiff contended that the defences pleaded do not on examination amount to any defences at all. 29 The plaintiff re-emphasised that it is and remains the fact that the Official Trustee is competent to agitate such a defence. 30 Finally, the plaintiff embraced the fundamental proposition that it already had judgment for possession of the Linley Point property against Mr Darroch. There can be no issue about his liability to the plaintiff for the debts pleaded in the statement of claim and Ms Bhatti accepts as much in her submissions. The plaintiff contended that it is thus inevitable that the property will be sold. Any adjustments of property rights as between Mr Darroch and Ms Bhatti will ultimately be a matter for determination by the Family Court. Ms Bhatti's right to prosecute her proceedings in the Family Court would appear to be unaffected by her bankruptcy: see Morkaya v Parkinson; Parkinson v Morkaya [2010] NSWSC 1194. Consideration 31 Ms Bhatti has no standing to appear to contest the plaintiff's claim for possession of the Linley Point property in these proceedings. The Official Trustee had determined not to appear in her stead. She has no interest in the Linley Point property. The submissions made pursuant to the limited leave that I granted to Ms Bhatti have served only to underscore the fact that, even apart from the effects of her bankruptcy, Ms Bhatti would not in any event appear to have an arguable defence in opposition to the plaintiff's claim for possession. No part of the defence, apart from paragraph 26, to which I have referred, was relied upon in support of the proposition that there was some theoretical utility in postponing consideration of the plaintiff's claim for possession until her bankruptcy might be annulled. Neither the actual nor imminent prospect of such an occurrence emerged with any degree of likelihood before me. Indeed, the indications are all to the contrary. In addition, the submissions made on Ms Bhatti's behalf did not appear to appreciate or take account of the fact that the plaintiff would probably seek to prove in her sequestrated estate, relying upon the personal covenants in the mortgage, for the debt consisting of the anticipated shortfall in the amount owing to the plaintiff after realisation of the Linley Point property. I re-emphasise that these are matters for comment only and are not central to the conclusions I have reached. 32 UCPR 14.28 is as follows: " 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (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. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 33 It is also important to observe that the plaintiff does not move the Court for summary disposal of the proceedings. References to the apparent unavailability of any defence should only be understood in the context of a practical consideration of the utility of defending the proceedings at all. In that context I note that the general principle that the power to strike out should be exercised only in plain and obvious cases precludes an interim enquiry about the merits of the pleaded case or, in the present circumstances, of the defence. With respect to the relief sought pursuant to UCPR 14.28, it is also significant that the plaintiff does not contend that the current pleading discloses no reasonable defence. Indeed, as I said at [16] in my earlier reasons for judgment, "[t]he form of the defence is not insubstantial and the nature of the matters pleaded suggests on one view that Ms Bhatti has an arguable defence". (emphasis added) However, the continued existence of a defence that operates as an impediment to the entry of judgment for possession in favour of the plaintiff, where neither Ms Bhatti nor the Official Trustee on her behalf is respectively able or willing to promote it, is in a different category and has a clear tendency to cause prejudice, embarrassment or delay in the proceedings. It should be struck out. If it were otherwise the defence would continue as a clog preventing the plaintiff from disposing of the proceedings other than by way of an application pursuant to UCPR 13.1. For reasons of its own, which may be significant, the plaintiff has chosen not to approach the matter in that way. 34 The plaintiff has also sought the striking out of the cross-claims filed by Ms Bhatti. The cross-claims are no impediment to the relief that the plaintiff seeks. Upon the basis that the Court should operate to give effect only to such orders or relief as may be necessary for the plaintiff's purposes, I do not consider that I should make any orders with respect to the cross-claims. I will take the same approach to the plaintiff's application for leave to discontinue [sic] the amended statement of claim in the Bhatti matter filed on 22 July 2010 unless the plaintiff wishes to make submissions to press for that order in the circumstances. 35 Finally I should observe that in deciding these applications and in proposing the orders that I have proposed I have read and relied upon the affidavits of Danielle Catherine Kuti sworn 3 September 2010 and 30 September 2010 and the affidavit of Helen Hien Thu Tran sworn 2 September 2010 filed in the Darroch and Bhatti matter. After I had reserved my decision the legal representatives of Ms Bhatti delivered affidavits sworn by David James Sweeney on 28 April 2009 in each matter and a further affidavit sworn by him on 12 October 2010 in the Bhatti matter to my chambers by email and later in hard copy together with a folder of exhibits. An accompanying letter from Mr Sweeney dated 13 October 2010 addressed to my Tipstaff referred to an exchange of emails that day, listed these affidavits and concluded with the following paragraph: "The affidavits of David James Sweeney sworn on 28 April 2009 were served last year in support of the applications to set aside the judgments. His Honour may find this evidence useful when he considers the submissions of Mr McCallum dated 12 October 2010." 36 For reasons that I trust will be obvious, it is not appropriate that I should have regard to any of this material. It was not referred to me in open Court and I am unaware whether the plaintiff would have objected to some or any of it. It is also inappropriate to expect that affidavits sent directly to a judge's chambers could or will be treated as evidence in contested proceedings if it has not otherwise become part of the evidence in the case and appropriately scrutinised in the usual way. The expectation that I intended to create was that Ms Bhatti should be given an opportunity to provide written submissions if desired. That is what occurred. Anything more than that was beyond my contemplation. The same applies to the affidavit of Danielle Catherine Kuti sworn in the Darroch and Bhatti matter on 13 October 2010 and forwarded by email to my chambers on that day by the solicitor for the plaintiff. Orders 37 Accordingly, subject only to the plaintiff making further limited submissions on the extent of the orders that I have proposed and to it complying with UCPR 16.4(3)(e), I consider that the following orders should be made: 1. In matter 2008/283367: (a) The defence filed by the second defendant on 5 May 2009 is struck out. (b) Judgment for the plaintiff against Ms Bhatti for possession of the whole of the Linley Point property. (c) Grant leave to the plaintiff forthwith to apply for an order for possession of the Linley Point property to enforce the judgment for possession 2. In matter 2008/285436: (a) The defence filed by the second defendant on 5 May 2009 is struck out. 38 I will direct the plaintiff to file such affidavit evidence in the former matter as it may seek to rely upon in satisfaction of UCPR 16.4(3)(e) within seven days. In the event that the plaintiff complies with that direction, I will thereafter make the orders that I have foreshadowed, or such further or other orders, including orders as to costs, as may seem appropriate. ********** 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. 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