Avahlon Pty Ltd v Kellas-Sharpe [2012] NSWSC 800

Supreme Court New South Wales

Medium Neutral Citation: Avahlon Pty Ltd v Kellas-Sharpe [2012] NSWSC 800 Hearing dates: 11 July 2012 Decision date: 11 July 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. That the default judgment entered against the defendant dated 12 February 2012 be set aside. 2. That the writ of possession issued on 14 March 2012 be set aside. 3. The plaintiff have leave to file an amended statement of claim in the form of MFI 1. 4. Judgment for the plaintiff for possession of the property located at xxx xxxxxxxxx xxxx, Leeville NSW 2470, being the land contained in folio identifiers 1/113916, 30/755618, 31/755618, 51/755618, 56/755618, 9/755625, 10/755625, 11/755625, 12/755625 and 86/755625. 5. The plaintiff have leave to issue a writ of possession in respect of the property identified in order 4. 6. The writ be stayed for a period of 21 days. 7. The defendant file and serve any defence to the amended statement of claim within 35 days. 8. The matter be listed for further directions before the Registrar at 9am on 5 September 2012. 9. Each party pay their own costs. Catchwords: PRACTICE AND PROCEDURE - application to set aside default judgment for writ of possession - statement of claim and judgment omitted relevant folio identifiers and registered mortgage numbers - whether judgment alternatively capable of amendment under slip rule - judgment set aside due to irregularity - summary judgment for possession on amended statement of claim before filing of defence - no legal defence - mortgagor in default - outstanding money claim - costs. Legislation Cited: Civil Procedure Act 2005 - s 56 Uniform Civil Procedure Rules 2005 - r 14.3, r 14.15, r 36.15 Cases Cited: Horrobin v Australia and New Zealand Banking Group Ltd (1996) 40 NSWLR 89 Newmont Yandal Operations Pty Ltd v the J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 Category: Interlocutory applications Parties: Avahlon Pty Ltd (Plaintiff) Wendy Kellas-Sharpe (Defendant) Representation: Counsel: C.H. Cassimatis (Plaintiff) Ms M.H. Allen (Sol) (Defendant) Solicitors: Morabito Legal (Plaintiff) Bartier Perry (Defendant) File Number(s): 2011/236979