Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1493

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1493 Hearing dates: 11 October 2013 Decision date: 11 October 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Second Defendant's Defence of 3 December 2013 struck out. (2) Second Defendant to file & serve NOM and evidence in support to amend defence and withdraw admissions already made by 18 October 2013. Such NOM is to made returnable before the Registrar on 25 October 2013. (3) Second Defendant to serve outline of submissions on Notice of Motion by 23 October 2013. (4) Order that the evidence by Mr Maya Lim, Mr Craig Burgess and Mr Malcolm Ferdinands be given by Audio Visual Link on 13 November 2013. (5) Plaintiff to file and serve all affidavits in reply by 23 October 2013. Catchwords: PROCEDURE - admissions - new defence filed withdrawing and modifying admissions - no leave obtained - defence struck out Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Ltd (Plaintiff) Jason Luke Donnelly (First Defendant) Fiona Marie-Therese Donnelly (Second Defendant) Representation: Counsel: A Vetrova (Plaintiff) No appearance (First Defendant) K Ryan (Second Defendant) Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2011/305340

Judgment 1The Plaintiff applies by Motion filed in Court today for a number of orders. 2The first order sought concerns a defence which has been filed by the Second Defendant on 3 October 2013. The Motion also seeks an order that the Second Defendant be required to admit particular documents in a Notice to Admit Authenticity of Documents filed by the Plaintiff on 25 September 2013, and an order that the cross-examination of four of the Plaintiff's witnesses be received by audio visual link. 3I have dealt in the course of argument with my reasons for holding that Mr Nicholas Stuart should not be cross-examined by video link but should be present in person but that the remaining witnesses, Mr Maya Lim, Mr Craig Burgess and Mr Malcolm Ferdinands give their evidence through audio visual link. Orders will be made by me in that regard. 4The issue with the defence is this: Until 13 September 2013 the matter was proceeding on the Third Amended Statement of Claim filed 14 December 2012. A defence had been filed to that form of the Statement of Claim on 14 February 2013. 5When the matter came before me on 13 September the Plaintiff said that it wished to amend the Statement of Claim because the facility sued upon expired in the ordinary course on 22 August 2013. The prior claim was based on defaults in paying moneys due under the agreement at various times. The Plaintiff wished to add a further brief section to the pleading to claim the right to the repayment of the facility based on its expiry. I gave leave to the Plaintiff to file such a Statement of Claim and also to the Second Defendant to put a defence on within a specified time. 6The Plaintiff filed a Fourth Amended Statement of Claim on 18 September 2013. The document was identical to the Third Amended Statement of Claim but for the inclusion of paragraphs 86A to 86E and the addition of a sentence in paragraph 91 in relation to the expiry of the facility. 7The Second Defendant filed a defence on 3 October 2013. This defence, although similar to the defence filed in February, differed in a number of respects. A quick perusal and comparison of the defences demonstrates that paragraphs 4, 6, 12 and 14 of the defence filed 3 October 2013 purported to withdraw or modify admissions made by the Second Defendant in the defence of 14 February 2013. The full comparison of the defences are set out in a table annexed to the affidavit of Anna Vetrova sworn 10 October 2013 at pages 46 to 53. 8The Second Defendant attempted to justify the filing of the further defence containing the withdrawal of the admissions on the basis that the case had fundamentally changed after service of affidavits from the Plaintiffs in May 2013. It was said that matters were there disclosed and in documents provided that justified the change to the pleading of the defence. The affidavits and other documents disclosed matters of which the Second Defendant had been hitherto unaware. 9However, no application was made for leave to withdraw the admissions nor to file a defence that did other than respond to the new paragraphs in the Fourth Amended Statement of Claim. 10The matter was before me for directions on 7 June and 13 September 2013 after the Plaintiff's material was served but no application was made by the Second Defendant on those occasions, or pursuant to the liberty to apply that I afforded on each occasion, to amend the defence and withdraw the admissions. 11It is essential that if admissions are to be withdrawn that a proper basis be shown for that. That ordinarily necessitates affidavit evidence explaining why the admissions were made at the time and what has changed in the evidence or otherwise to justify a withdrawal of the admissions. 12The matter is fixed for hearing on 11 November 2013 for three days and has been so fixed for some time. 13The Second Defendant says that she wishes to know in advance of the hearing whether she will be allowed to rely in substance on the defence filed 3 October 2013. 14I can see that there would certainly be some benefit to both parties if the precise form of the pleadings was known. On the other hand, the changes which are said to have been brought about by the Plaintiff's evidence go to the very heart of the defence made (the unconscionability of the facility agreement) and it may be that the better course is for the trial judge to determine whether the admissions should be withdrawn at the outset of the proceedings or even in the final judgment when the Second Defendant's defence is fully explained. 15However, in deference to the Second Defendant's desire to know the position before the trial I will grant leave to her to file a Notice of Motion and affidavit in support to withdraw the admissions and amend the defence. That Notice of Motion is to be filed and served by 18 October and is to be made returnable before the Registrar on 24 October. It will then be for the Second Defendant to persuade the Registrar that it is appropriate to refer the matter to the Duty Judge if that is possible on the day. 16The Registrar may well have regard to my brief summary of the events which have led to the filing of that Notice of Motion and these remarks may assist the Registrar and indeed the Duty Judge in forming a view about whether it is appropriate to determine the question of pleadings in advance of the hearing. 17Any such decision may well be influenced by the submissions made by the Second Defendant which will tend to clarify whether the full factual scenario relating to the loan offer need to be explored to determine that issue. In such a circumstance the Registrar and/or Duty Judge may feel it appropriate to reserve the matter to the commencement of the trial on 11 November. I do not express any particular view about the matter. 18In the meantime, the defence filed 3October 2013 is struck out. I note that the defence claims relief in the form of declarations and orders. These prayers for relief are almost identical with relief claimed in a cross-claim filed 11 May 2012 which the Second Defendant's counsel informed me on 13 September 2013 was not being pursued. No explanation was offered for the relief claimed being included in the defence. 19In relation to the documents in respect of which orders are sought that the Second Defendant admit their authenticity, Mr Ryan for the Second Defendant accepts that the Loan Offer (document 4) and the Standard Terms of Conditions (Document 2) should be admitted as to their authenticity but without prejudice to his right to impugn those documents by reason of the defences which the Second Defendant has raised in the matter. It goes without saying that Mr Ryan must be allowed to do that. 20The third document in respect of which an order is sought is the Deed of Assignment dated 4 May 2011 (document 12 in the Notice). That is a document which is now part of the material in respect of which it is sought to withdraw admissions. I think in the circumstances it is not appropriate to require admission of the authenticity of that document whilst ever the withdrawal of the admissions remains to be determined. 21Accordingly, I make the following orders: 1. Second Defendant's Defence of 3 December 2013 struck out. 2. Second Defendant to file & serve NOM and evidence in support to amend defence and withdraw admissions already made by 18 October 2013. Such NOM is to made returnable before the Registrar on 25 October 2013. 3. Second Defendant to serve outline of submissions on Notice of Motion by 23 October 2013. 4. Order that the evidence by Mr Maya Lim, Mr Craig Burgess and Mr Malcolm Ferdinands be given by Audio Visual Link on 13 November 2013. 5. Plaintiff to file and serve all affidavits in reply by 23 October 2013.