Secure Funding Pty Ltd v Coe & Anor [2015] NSWSC 472

Supreme Court New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Coe & Anor [2015] NSWSC 472 Hearing dates: 27 April 2015 Date of orders: 27 April 2015 Decision date: 27 April 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Pursuant to Uniform Civil Procedure Rule 12.7(2), the defence filed 26 September 2014 be struck out.

(2) The defendants pay the plaintiff's costs of the notice of motion filed 14 April 2015. Catchwords: PLEADING – defence struck out – defendants not conducting defence with due dispatch – no question of principle. Legislation Cited: - Uniform Civil Procedure Rule 12.7(2) Category: Principal judgment Parties: Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) (Plaintiff) Jacqueline Clair Coe (First Defendant) Mark Stanley Coe (Second Defendant) Representation: Counsel: Ms J. Keevers-Ryles (Plaintiff) N/A (Defendants)

Solicitors: Hunt & Hunt (Plaintiff) N/A (Defendants) File Number(s): 2014/197957 Publication restriction: Nil

ex tempore Judgment 1. These are proceedings that were commenced initially seeking a claim for possession of land as well as money owing under a mortgage. 2. In October 2014 a number of directions were made which included a direction that the defendants provide a response to a request for particulars of their defence as well as provide discovery. 3. Their defence was a rudimentary document. It barely raised any arguable claim other than to put in issue the level of indebtedness claimed by the plaintiff. It did, however, include a positive assertion that they had made some payments. It also included an assertion that they had offered to pay a reduced sum of their mortgage until it had been sold and that offer had been refused. The request for particulars sought included, inter alia, details of the payments as well as details of the offer that was said to have been made but refused. 4. Later in 2014 the property the subject of the proceedings was sold and the net proceeds were paid to the plaintiff. There is still, however, apparently a shortfall, although the level of that shortfall is not apparent. 5. In February 2015 the defendant's solicitor filed a notice of ceasing to act. In that notice the solicitor advised of an address in Moama, New South Wales, as the last known address for the plaintiffs. Since that time the plaintiffs have undertaken their own enquiries and identified an address in Rochester, Victoria, as the place where it is apprehended the defendants now live. 6. After the solicitor ceased to act there were various occasions when the matter was listed for directions before this Court. There was no appearance on behalf of the defendants. 7. Further, the plaintiff's solicitors sent repeated requests to all known addresses for the defendants requesting an answer to their particulars as well as compliance with an order for discovery. There has been no response. The material suggests the attitude of the defendants was that, after the property was sold, they would simply not participate further in the proceedings. 8. This lack of action on the part of the defendants eventually led to the plaintiff filing the motion that is before the Court today. It seeks that the defence be struck out in accordance with Uniform Civil Procedure Rule 12.7(2) which provides that if a defendant does not conduct a defence with due despatch the Court may strike it out either in whole or in part, or make such other order as the Court thinks fit. 9. The plaintiffs sent this motion as well as a letter advising of its listing today to all known addresses of the defendants. In circumstances where the defence that is pleaded is only barely arguable, yet the defendants have not been prepared to provide particulars of that defence, attend Court or comply with an order for discovery, it follows that they are not conducting their defence with due despatch. Given that it appears that they simply do not wish to participate further in the proceedings, the appropriate course is to make order 1 in the notice of motion striking out the defence. 10. Order 2 of the notice of motion is an order to the effect the plaintiff file a motion for default judgment within seven days. It is not the Court's function to direct the plaintiff to file a notice for default judgment but I have no doubt the plaintiff will do so. I will simply decline to make order 2. It will be a matter for the plaintiff as to the steps that they wish to take as a consequence of there being no defence. It will be incumbent on the plaintiff to notify the defendants of the orders the Court makes today. 11. Order 3 of the notice of motion seeks costs. Uniform Civil Procedure Rule 42.20(2) provides that if a defence is struck out then, unless the Court otherwise orders, the defendant must pay the plaintiff's costs of the proceedings in relation to those matters in respect of which the defence has been struck out. Given the basis on which the defence has been struck out and that there is a likelihood that there will be a motion for default judgment, I will not make a costs order of that kind at this point. Instead, I will simply order that the defendants pay the plaintiff's costs of the notice of motion. In the likelihood that default judgment will be obtained, then I expect an order for the costs of the proceedings would follow at that point. 12. Accordingly, the Court orders that: 1. Pursuant to Uniform Civil Procedure Rule 12.7(2) the defence filed 26 September 2014 be struck out. 2. The defendants pay the plaintiff's costs of the notice of motion filed 14 April 2015.