Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No.5) [2014] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No.5) [2014] NSWSC 949 Hearing dates: 10 July 2014 Decision date: 18 July 2014 Jurisdiction: Common Law Before: Adamson J Decision: In proceedings 2011/382861 (1) Pursuant to r 13.4(1)(a), (b) and (c) of the UCPR order that the fifth defendant's defence and cross-claim be dismissed. (2) Pursuant to r 14.28(1)(a), (b) and (c) of the UCPR order that the fifth defendant's defence and cross-claim be struck out in its entirety. (3) Pursuant to r 13.1 of the UCPR, order that the plaintiffs are entitled to possession of the land situated at and known as 87 Princes Highway, Maddens Plains, New South Wales 2508 (Receivers and Managers Appointed), with the following folio identifiers: (a) Lot 2 in Deposited Plan 240566; (b) Lot 3 in Deposited Plan 240566; (c) Lot 4 in Deposited Plan 240566; (d) Lot 1 in Deposited Plan 1048847; and (e) Auto consol 8659-94, (Property) (4) Grant leave to the plaintiffs to issue a writ of possession in respect of the Property. (5) Subject to a written application to my associate within 7 days for a different order, order the fifth defendant, Mr Birch, to pay the plaintiffs' costs. In proceedings 2013/282086 (1) Pursuant to r 13.4 of the UCPR dismiss the proceedings as an abuse of process. (2) Subject to a written application to my associate within 7 days for a different order, order the plaintiff, Mr Birch, to pay the costs of the proceedings Catchwords: CIVIL PROCEDURE - application for summary judgment of a claim for possession and summary dismissal of cross-claim - summary judgment and dismissal granted - no triable issue and no viable cause of action or defence - abuse of process and vexatious proceedings - embarrassing statement of claim and draft pleading - respondent's history of manipulating court processes by obtaining adjournments and deferrals through engaging legal practitioners and dispensing with their services - delay of court proceedings to the detriment of the applicant Legislation Cited: Australian Securities and Investments Commission Act 2011 (Cth), s 12 CB, s 12CC Contracts Review Act 1980 (NSW), s 7, s 9 Uniform Civil Procedure Rules 2005 (NSW), r 13.1, r 13.4 Cases Cited: Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club Pty Limited (No.4) [2014] NSWSC 503 Commercial Banking Co of Sydney v Pollard [1983] 1 NSWLR 74 General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Category: Principal judgment Parties: Proceedings: 2013/282086 Christopher Brian Birch (Plaintiff) National Australia Bank Limited (First Defendant) Christopher Robert Campbell (Second Defendant) Vaughan Neil Strawbridge (Third Defendant)