St George Bank - A Division of Westpac Banking Corporation v Tonab Investments Pty Ltd [2013] NSWSC 1910

Supreme Court New South Wales

Medium Neutral Citation: St George Bank - A Division of Westpac Banking Corporation v Tonab Investments Pty Ltd [2013] NSWSC 1910 Hearing dates: 2 December 2013 Decision date: 02 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Stand over to 16 December 2013. 2. Liberty to apply on 2 days' notice. Catchwords: REAL PROPERTY - possession of land - second defence repeating allegations in earlier struck-out defence - abuse of process Category: Interlocutory applications Parties: St George Bank - A Division of Westpac Banking Corporation (Plaintiff) Tonab Investments Pty Ltd (Defendant) Representation: Counsel: K Fraser (Plaintiff) K Millist-Spendlove (Defendant) Solicitors: Kemp Strang (Plaintiff) Bechara & Co (Defendant) File Number(s): 2013/234902

Judgment 1These proceedings commenced on 2 August 2013 claiming possession of land of 204 Tumbi Road, Tumbi Umbi. 2The Defence was filed on 4 September 2013. That Defence recited claims that correspondence had been forwarded to the Plaintiff's solicitors indicating that the Defendant wished to discharge the mortgage. The Defence also made references to an exchange of contracts on the property, although that was apparently dependent upon subdivision being permitted under a draft LEP by the council. In any event, the Defence did not demonstrably disclose defence to the claim for possession. 3On 22 October 2013 orders were made that the Defence be struck out but that the Defendant be permitted to file an Amended Defence by 18 November. In breach of those orders the Amended Defence was filed on 26 November. It was in identical terms to the earlier Defence except it contained an allegation that on or about 4 June 2013 the Plaintiff unlawfully entered the property without giving reasonable notice to the Defendant. Since the re-entry by the Plaintiff happened prior to the commencement of the proceedings, it is not apparent how that provides any defence to the claim nor why, even it was put in the Amended Defence. I am informed that since that time the Defendant has retaken possession of the property and that led to the commencement of these proceedings on 2 August. 4The Amended Defence simply appears to have been a stalling mechanism and I consider it is an abuse of process in the circumstances recited. In those circumstances, it will be struck out. 5The Defendant says that she has an unconditional offer of finance to pay out the mortgage but at the present time does not have any documentary evidence to support that. She seeks an adjournment to enable that to be forwarded to the Plaintiff's solicitors. 6In the circumstances, I will stand the matter over to 16 December 2013. If there is not clear evidence of unconditional finance available by that date, the Plaintiff has indicated that it will be seeking judgment that day. 7I stand the matter over to 16 December 2013 at 9.30 am before me. Liberty to apply on two days' notice.