National Australia Bank Limited v Octagon Financial Services Pty Limited [2013] NSWSC 689

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Octagon Financial Services Pty Limited [2013] NSWSC 689 Hearing dates: 29 May 2013 Decision date: 29 May 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Consent orders made in terms of consent judgment. Catchwords: PROCEDURE - judgments and orders - possession of property - consent judgment - leave to issue writ of possession Category: Procedural and other rulings Parties: National Australia Bank Limited (Plaintiff) Octagon Financial Services Pty Limited (First Defendant) Nicholas Martin Hunter (Second Defendant) Representation: Solicitors: Mr E Saad Gadens Lawyers (Plaintiff) Ms G Sherlock Aston Legal Solicitors (Defendants) File Number(s): 2012/00087976 Publication restriction: None

EXTEMPORE Judgment 1These proceedings were commenced by statement of claim filed March 2012. 2Today the plaintiff, the National Australia Bank Limited, seeks the entry of a consent judgment by which orders are to be made in favour of the plaintiff in relation to an amount outstanding under an agreement between the parties in the sum of some $1,280,565.60, as well as an order for possession of property located at St Ives and leave to issue a writ of possession for the property. 3The Bank's application is supported by an affidavit sworn by its solicitor, Mr Saad. In that affidavit reference is made to the procedural history of the matter, which includes the filing of a defence by the first and second defendants on 17 April 2012. The first defendant was wound up by an order of 2 May 2012. By that order a liquidator was appointed, with the result that the first defendant is no longer an active party in these proceedings. 4In April 2013 I made orders that the second defendant was to serve a proposed amended defence on the plaintiff within 21 days and that, if the defence was not served, the defence dated 17 April 2012 would be struck out. As it transpired no such amended defence was filed and when the matter came into the list again on 26 April I confirmed that, in accordance with the earlier orders, the defence of 17 April was struck out. 5Thereafter the second defendant instructed new solicitors and negotiations ensued between the parties as to a settlement. On 16 May the plaintiff offered to settle the proceedings on terms which involved the execution of a consent judgment and a notice of discontinuance. That offer was accepted on 17 May. It is the consent judgment then provided to the plaintiff which the plaintiff now seeks to pursue. 6The agreement contemplated that the judgment would not be pursued if steps which the plaintiff was taking to refinance resulted in a settlement payment being made to the Bank by 27 May. That payment has not been made and now, in accordance with the agreement, the plaintiff seeks entry of the consent judgment. 7There was an appearance today by Ms Sherlock, for the second defendant. She has filed a notice of intention to file a notice of ceasing to act, for reasons which she explained. They include that while instructed to act in the proceedings and to enter into the settlement on which the Bank relies, contact with the second defendant has been lost in circumstances which she outlined. 8Also annexed to Mr Saad's affidavit is further communication from the second defendant, which evidences that he has appointed other solicitors to act for him in a pursuit of refinancing, but he has not appeared today to oppose the entry of the judgment which the Bank now pursues. 9In all of those circumstances I am well satisfied that the relief which the plaintiff seeks should be granted. 10By consent I make the orders which the parties have agreed in terms of the consent judgment filed today.