Australian and New Zealand Banking Group Limited v Bechara [2013] NSWSC 1125

Supreme Court New South Wales

Medium Neutral Citation: Australian and New Zealand Banking Group Limited v Bechara [2013] NSWSC 1125 Hearing dates: 13 and 15 August 2013 Decision date: 16 August 2013 Before: Harrison J Decision: 1. Grant leave to the second defendant to file in Court an amended defence dated 12 August 2013 in the form of exhibit "A" and an amended cross-claim dated 12 August 2013 in the form of exhibit "B". 2. Order that the amended defence and amended cross-claim be struck out pursuant to UCPR 14.28. 3. Pursuant to UCPR 13.1 direct the entry of judgment for the plaintiff against the first defendant and the second defendant for possession of the whole of the land in folio identifier 4/SP1684 known as and situate at 4/18 Church Street, Hunters Hill. 4. Pursuant to UCPR 13.1 direct the entry of judgment for the plaintiff against the first defendant and the second defendant for $507,991.72. 5. Grant leave to the plaintiff forthwith to apply for the issue of a writ of possession of the property referred to in order 3 above. 6. Stay execution of any such writ as may be issued up to and including noon on Friday 13 September 2013. 7. Restrain the plaintiff up to and including noon on Friday 13 September 2013 by itself, its servants or agents or howsoever otherwise from selling or agreeing to sell or dispose of the property referred to in order 3 above to any purchaser other than the second defendant otherwise than with the consent of the second defendant. 8. Grant liberty to the second defendant, if so advised, to file within 7 days any proposed further amended cross-claim upon which he proposes to rely. 9. Make no order as to the costs of the first defendant's notice of motion filed on19 July 2013 or the second defendant's notice of motion filed in Court on 13 August 2013. 10. Grant liberty to apply in respect of the implementation or enforcement of these orders on 48 hours' notice. Catchwords: REAL PROPERTY - possession of land - application by mortgagee for summary judgment - where first defendant does not contest plaintiff's claim - amended defence filed by second defendant - whether mortgagee failed to serve notice of default - cross-claim by second defendant against first defendant - whether pleading amenable to strike out Legislation Cited: Civil Procedure Act 2005 Consumer Credit Code Real Property Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: Hughes v Janrule Pty Ltd [2011] ACTCA 15 Category: Procedural and other rulings Parties: Australia and New Zealand Banking Group Limited (Plaintiff) Athanassia Bechara (also known as Athanassia Bouras) (First Defendant) Cameel Anthony Bechara (Second Defendant) Representation: Counsel: R I Bellamy (Plaintiff) M Lawson (First Defendant) P W Bates (Second Defendant) Solicitors: Gadens Lawyers (Plaintiff) Piggott Stinson (First Defendant) Demir Legal (Second Defendant) File Number(s): 2013/102125 Publication restriction: Nil