Supreme Court New South Wales Medium Neutral Citation: Commonwealth Bank of Australia v Brown [2015] NSWSC 622 Hearing dates: 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 15 April 2015 struck out. 2. Leave to the First Defendant to file an Amended Defence by close of business on 5 June 2015. 3. If no such defence is filed by that time, the Plaintiff is at liberty to move for default judgment against both Defendants. Catchwords: REAL PROPERTY – possession of land – default under mortgage – defence filed containing no defence to claim – absence of defendant – leave to re-plead – no matter of principle Legislation Cited: Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) Debra Lee Brown (First Defendant) Anne Marie Schafferius as Executor of the Estate of the Late Wayne Martin Carr (Second Defendant) Representation: Counsel: T Cavanagh (Plaintiff) No appearances (First and Second Defendants) Solicitors: HWL Ebsworth Lawyers (Plaintiff) H Weller (First Defendant) Unrepresented (Second Defendant) File Number(s): 2015/51334 Judgment 1. In about December 2005, the First Defendant and the late Wayne Martin Carr gave a mortgage over a property 31 Cambridge Avenue, Windsor to secure a loan from the Plaintiff. 2. Mr Carr died on 19 April 2014. It seems that default under the loan agreement and mortgage occurred sometime after that. In any event, a notice under s 57 of the Real Property Act 1900 (NSW) was served on 9 December 2014 and was not responded to. Subsequently, probate was taken out of Mr Carr's estate by the Second Defendant on 19 January 2015. When there was a failure to respond to the section 57 notice, the proceedings were commenced on 18 February this year seeking possession of the property and judgment in a sum of a little over $270,000. 3. The First Defendant has filed a defence through a solicitor on 15 April 2015. In that defence, she admits relevantly all of the paragraphs of the Statement of Claim and then she says "The First Defendant has a buyer who is in the process of purchasing an interest in the property. The loan for the Plaintiff will be paid out in full from the settlement monies". 4. The Second Defendant has not appeared and has indicated that she does not intend to do so. Mr Cavanagh, who appears for the Plaintiff today says that he spoke with the First Defendant's solicitor this morning who asked Mr Cavanagh what his client intended to do today. There was no appearance by the First Defendant or anyone on her behalf when the matter was called at 2 o'clock. 5. The defence, as filed, does not disclose a defence to the Statement of Claim. Indeed, the pleading might be thought to contain admissions upon which the Plaintiff would be entitled to obtain judgment. However, that pleading is not entirely inconsistent with a defence of confession and avoidance such as a claim seeking relief under the Contracts Review Act 1980 (NSW) or based on unconscionability. 6. I do not consider the present defence should be allowed to remain but given the absence of the First Defendant or anyone on her behalf, I am not prepared at this stage to permit the Plaintiff to obtain judgment in the matter. 7. The First Defendant will be given a further short period of time, if she wishes, to file a defence that properly discloses a defence to the Plaintiff's claim. 8. The defence filed 15 April 2015 is struck out. Leave is given to the First Defendant to file a defence that discloses a defence to the Plaintiff's claim by close of business on 5 June 2015. If no such defence is filed by that time, the Plaintiff is at liberty to move for default judgment against both Defendants. If a defence is filed by that time, the proceedings will be stood over to 10 June at 9.30 before me. Liberty to apply on two days' notice in the meantime. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2015