National Australia Bank Ltd v Ironhawk Holdings Pty Ltd [2013] NSWSC 692

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Ironhawk Holdings Pty Ltd [2013] NSWSC 692 Hearing dates: 31 May 2013 Decision date: 31 May 2013 Jurisdiction: Common Law Before: Davies J Decision: Plaintiff given leave to move for default judgment Catchwords: PROCEDURE - Possession List - Defendants failed on two occasions to file Defence - no appearance when matter called - Plaintiff free to obtain default judgment Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff) Ironhawk Holdings Pty Ltd (First Defendant) Craig Barton Nelson (Second Defendant) Representation: Solicitors: E Saad, Gadens Lawyers (Plaintiff) No appearance (Defendants) File Number(s): 2013/61050

Judgment 1I gave judgment in this matter on 16 May 2013 where I struck out the Defendants' Defence of 3 April 2013. I had earlier on 1 May indicated to the Second Defendant (who represented both Defendants) that the Defence would be struck out and I gave him leave on that occasion to file any further Defence by 15 May. 2When the proceedings came back before me on 16 May such a Defence had not been filed. The Second Defendant informed me that he had spoken with a solicitor about the matter but that the further Defence was not able to be finalised. He also told me that he obtained a conditional approval for a refinance of the property to the extent of $352,000 and he wanted the Bank to provide him with a payout figure. 3I said in my judgment of 16 May that because and only because the Defendant and his company were unrepresented I was prepared to give them one further opportunity to file a proper Defence in the matter. The time for the filing of that Defence was extended to no later than 30 May. I said that if no such Defence was filed by that time the Plaintiff would be free to move for default judgment in the matter. 4Mr Saad, who again appears for the Plaintiff today, tells me that on 21 May the Bank provided a payout figure to the Defendant but has not heard further from him. He rang the Defendant yesterday and left a message but has not had a return phone call. 5The arrangement on 16 May was, as on previous occasions, that Mr Nelson would be permitted to appear by telephone today. My tipstaff tried a number of times before I came on to the bench to contact Mr Nelson but the phone went to voicemail. A similar thing happened when he was telephoned during the course of this hearing. 6In those circumstances, I am not prepared to give any further time to the Defendant to file a Defence. The lack of contact with the Bank and his unavailability this morning, together with the delay in filing a Defence on the last occasion, suggests that the Defendant is not pursuing the matter with the expedition that he ought to do in all of the circumstances. The Plaintiff is given leave to move for default judgment in the matter.