National Australia Bank Ltd v Kamboj [2014] NSWSC 865

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Kamboj [2014] NSWSC 865 Hearing dates: 27 June 2014 Decision date: 27 June 2014 Jurisdiction: Common Law Before: Davies J Decision: Catchwords: REAL PROPERTY - possession of land - default under mortgages - admissions by defendants in defences of all matters pleaded - defences struck out Legislation Cited: Farm Debt Mediation Act 1994 (NSW) Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff) Rajeev Kamboj (First Defendant) Baljit Kaur (Second Defendant) Representation: Counsel: R Lewin (Plaintiff) No appearances (Defendants) Solicitors: Gadens Lawyers (Plaintiff) Self represented (Defendants) File Number(s): 2014/27783

Judgment 1The Plaintiff claims possession of two parcels of land; the first being 20 Wyvern Crescent, Griffith, and the second at 567 New Farms Road, Nericon. 2The claim for possession arises out of defaults in relation to three loan facilities. One of these was entered into on 17 March 2009 in respect of a facility of $170,000. The second was entered into on 7 May 2009 for a facility of $375,000 and the third was an overdraft arrangement. 3Default took place in relation to the first facility on 7 November 2013; the second facility on 27 September 2013 and in respect of the overdraft, on 27 November. The total amount owing, as at 23 January 2014, was in the vicinity of $700,000. 4The Defendants both own the land at 20 Wyvern Crescent, Griffith and the second Defendant owns the property at Nericon. 5Each of the Defendants, acting for themselves, has filed a defence in which they expressly admit every paragraph in the Statement of Claim. However, they each deny that the loan agreements have legal effect because they say that the property at 20 Wyvern Crescent, Griffith, has not been properly described. They also say that the Plaintiff is estopped, presumably from seeking possession, although that is not made clear, because in negotiations conducted at a mediation in June 2013, the Plaintiff led the Defendants to believe that they would refinance the existing facilities if an amount owing could be agreed upon between the Plaintiff and the Defendants. The Defendants say that as a result of that representation they did not try to sell the properties, nor try to refinance what was owing to the Plaintiff. 6Finally, they allege that the Plaintiff has not exercised its power of sale in accordance with the agreements. It is not apparent to me how the last defence has any validity, since the properties have not been sold. 7It does not seem to me that the matters pleaded in the defences raise any defence to the claim at all. 8The mediation was a mediation the Farm Debt Mediation Act 1994 (NSW). Matters were not resolved at that mediation, with the result that the Plaintiff has a certificate under s 11 of the Farm Debt Mediation Act that the Act does not apply to the mortgages. There is no evidence at all of the representations said to have been made at the mediation, but in the ordinary course of events such representations would not be entitled to be given in evidence. 9Further, on the face of what appears in the defence, there was no matter which could give rise to an estoppel, because it was conditional on the parties agreeing what amount was owing. It is difficult to see, also, how there has been any change of position that is not now able to be rectified by the sale or refinance of the properties as the Defendants apparently otherwise intended. 10There is no appearance today of the Defendants although they notified on two occasion by the solicitors for the Plaintiff. 11In all of those circumstances it does not seem to me that the defences provide any defence to the Plaintiff's claim and they will, therefore, be struck out. 12I note that there has been proof of service of occupiers in relation to the properties. 13The Plaintiff does not today seek judgment, but only that the defences be struck out and leave be given to the Plaintiff to seek judgment in the ordinary course. 14Accordingly, the order that I make is that each of the defences filed 26 May 2014 is struck out. The Plaintiff may proceed to default judgment.