Rural Bank Limited v Lloyd [2013] NSWSC 1214

Supreme Court New South Wales

Medium Neutral Citation: Rural Bank Limited v Lloyd [2013] NSWSC 1214 Hearing dates: 20 June 2013 Decision date: 03 September 2013 Jurisdiction: Common Law Before: Adams J Decision: Leave granted to issue writ of possession together with costs. Catchwords: MORTGAGES - possession - claim for writ of possession - borrower relies on tender by pretended bill of exchange - no genuine payment or tender - no basis for stay under r 6.17 of the Uniform Civil Procedure Rules 2005

PROCEDURE - default judgment - application to set aside default judgment for payment - pretended bill of exchange - no irregularity Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Interlocutory applications Parties: Rural Bank Limited (Plaintiff) David Lloyd (Defendant) Representation: Counsel: S B Loughnan (Plaintiff) Solicitors: Hennessey & Co (Plaintiff) Self-represented (Defendant) File Number(s): 2012/310706

Judgment

Introduction 1On 8 October 2012 the plaintiff filed a statement of claim seeking an order for possession of an identified parcel of land, judgment against the defendant plus interest and costs. No defence was filed and on 8 May 2013, following a notice of motion in that respect, judgment by default was awarded to the plaintiff. In accordance with the practice of the Court, the plaintiff filed a notice of motion seeking leave to issue a writ of possession and an order for the issue of a writ in respect of the land. The application was supported by an affidavit of a manager employed by the plaintiff setting out, amongst other things, the amount of the judgment debt plus fees and costs, deposing, in particular, that the judgment debtor has made no payments since entering of judgment. 2On 28 March 2013 a notice of payment was filed by the defendant stating that, on 22 March 2013 he paid to the plaintiff the sum of $505,000, the total amount claimed in the statement of claim. (As it happens, this amount is not correct but nothing turns on it.) The defendant on 6 June 2013 filed a notice of motion seeking to set aside the default judgment.