National Australia Bank Ltd v Zeene [2014] NSWSC 1765

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Zeene [2014] NSWSC 1765 Hearing dates: 10 December 2014 Decision date: 10 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. First Defendant's Notice of Motion dated 5 December 2014 dismissed. 2. First Defendant to pay the Plaintiff's costs of the Motion. Catchwords: PROCEDURE - claim for possession and debt - motion for leave to filed amended defence - prior defence struck out by consent - new defence identical in part to struck out defence - defence alleges that loan should not have been made by reason of inability of borrowers to service loan - loan for commercial and development purposes - defence struck out Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff) Peter Elias Zeene (First Defendant) Cherylyn Tonia Zeene (also known as Cherylyn Tonia Dean) (Second Defendant) Eileen Joan Dean (Third Defendant) Representation: Counsel: A Kaufmann (Plaintiff) R Ardino (First Defendant) B Adam (Second Defendant) J Gounder (Third Defendant) Solicitors: Gadens Lawyers (Plaintiff) Morgan Ardino & Co. Solicitors (First Defendant) The People's Solicitor (Second Defendant) Gounder & Associates (Third Defendant) File Number(s): 2014/74320

Judgment 1The First Defendant applies by Motion for leave to file a further amended defence. 2An earlier Defence was struck out by consent on 15 May 2014. 3The Defence that is now sought to be filed is really in two parts. The first part consists of paragraphs 1 to 4. Those paragraphs, except for a reference to some particulars, are identical to paragraphs 1 to 4 of the Defence which was struck out in May. Those paragraphs simply put in issue the amount that is now due to the Plaintiff in order to discharge the mortgages on the properties. 4A dispute about the amount that is due cannot provide a defence to a claim for possession where there has been default and an undoubted amount is due to the Plaintiff. 5Paragraph 5, which forms the second basis for the Defence, reads as follows: The First Defendant alleges that the loan should never have been approved as the total rental income available, being the rentals from Units 1, 2, 3 and 4, 185 Blackwall Road Woy Woy, as well as the rental incomes from the two flatettes at 171 Denison Road, Dulwich Hill, as well as the personal income of the First Defendant were insufficient to maintain the mortgage repayments on the principal loan of $1,250,000. 6There are then particulars given in relation to the various sources of income that were available to the defendants. 7It is not at all apparent why the fact that the income of the borrowers was not sufficient to maintain the mortgage repayments provides any defence to the claim. These loans were borrowed for commercial or development purposes. The obligation must be on the borrowers to ensure that they will be able to meet any mortgage repayments, however desirable it might be from the Bank's part to make sure that it is satisfied that repayments will be able to be met. However, it does not provide a defence to the claims made by the Bank. 8In those circumstances, leave is refused to file the further amended defence. 9I have enquired from Mr Ardino, who appears for the First Defendant, if his client has any other defences to the claim. He tells me that the matters that are contained in this proposed Defence were the two matters of concern to his client. 10In those circumstances the Notice of Motion filed 5 December 2014 is dismissed. The First Defendant should pay the Plaintiff's costs of the Motion.