Commonwealth Bank of Australia v Buggy [2013] NSWSC 1004

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Buggy [2013] NSWSC 1004 Hearing dates: 29 July 2013 Decision date: 29 July 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) The Defence filed 27 May 2013 is struck out. (2) Plaintiff given leave to obtain default judgment for possession. Catchwords: PROCEDURE - Possession List - early judicial directions - defendant an undischarged bankrupt - Defence filed does not disclose defence to the claim - defence struck out Category: Interlocutory applications Parties: Commonwealth Bank of Australia (Plaintiff) Michael Francis Buggy (Defendant) Representation: Counsel: H Van Ravels (Plaintiff) In person (Defendant) Solicitors: Gadens Lawyers (Plaintiff) In person (Defendant) File Number(s): 2012/393139

Judgment 1These proceedings commenced on 18 December 2012 seeking possession of the land at xx xxxxxx xxxxx Tweed Heads West and claiming judgment for a monetary sum against the Defendant. The allegation is that the Defendant entered into a loan agreement with the Bank on 9 November 2006 and borrowed a sum a little over $463,000. It is alleged that there was a default at least by 11 October 2012 which was not remedied. The Plaintiff accordingly seeks possession and judgment for the amount owing. 2The Defendant filed a Defence on 27 May 2013. Two matters seem to be raised in the Defence. The first is that the Defendant was at all times, it is said, acting as trustee for Cleary Bros (Parramatta) Pty Limited which is a wholly-owned subsidiary of a company called Parker Constructions Pty Limited and he says that he is not personally liable. He says that he only holds the land at Tweed Heads West on behalf of Cleary Bros by way of a trust deed. So much is easy to understand in the defence. 3The remainder of the Defence raises a number of complaints that the Defendant has which concern dealings between the Bank of Bendigo and the present Plaintiff. It involves allegations that the Plaintiff froze the Defendant's money which ultimately led to his bankruptcy and, it would seem, default in this matter. A third company called Icehot Pty Limited is also said to be involved but its relevance is not identified. There is some passing reference to a damages claim against Bendigo Bank but quite how that relates to the present proceedings is not stated. 4Those allegations are very difficult to understand and certainly the pleading does not comply with proper pleading practice. 5In any event, the Defendant is currently an undischarged bankrupt having been made such, it would seem, on 25 March 2011. I am informed by Ms Van Ravels for the Plaintiff that the Trustee does not intend to defend the proceedings although at the present time there is no written confirmation of that matter. 6The Defence as filed does not disclose any defence to the claim made, and in any event it cannot be put forward by the Defendant whilst he is an undischarged bankrupt. In those circumstances the Defence of 27 May 2013 is struck out. 7The Plaintiff is given leave to obtain default judgment for possession of the land but such default judgment is not to be obtained before there is written confirmation from the Trustee in bankruptcy that he does not intend to defend the proceedings.