Commonwealth Bank of Australia v Tegg [2015] NSWSC 952

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Tegg [2015] NSWSC 952 Hearing dates: 16 July 2015 Date of orders: 16 July 2015 Decision date: 16 July 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence filed on 22 December 2014 on behalf of Second Defendant struck out. 2. Any Amended Defence to be filed and served by Second Defendant by 6 August 2015. 3. Second Defendant to pay the Plaintiff's costs of Notice of Motion. Catchwords: PROCEDURE – pleadings – claim for debt arising out of guarantee – failure of defence to demonstrate an arguable defence to the claim – form of defence – pleading struck out with leave to re-plead Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) Adam Lance Tegg (First Defendant) Lance Tegg (Second Defendant) Berit Tegg (Third Defendant) Representation: Counsel: T Cavanagh (Plaintiff) No appearance (Second Defendant)

Solicitors: HWL Ebsworth Lawyers (Plaintiff) Unrepresented (Second Defendant) File Number(s): 2014/331178

Judgment 1. The Plaintiff commenced these proceedings on 10 November 2014 seeking amounts pursuant to guarantees given by each of the three Defendants for loans and facilities made available to various companies associated with the Defendants. 2. The Second Defendant, acting for himself, filed a Defence on 22 December 2014. The Defence in its entirety reads: The CBA has commenced proceedings against me for an amount of 4.2 million dollars. They are relying on a guarantee I gave them in July 2007. I do not dispute the guarantee but it is restricted to $100,000. I have asked for the guarantee document and have received the guarantee document which clearly states an amount of $100,000. When queried as to why the difference in amount the lawyers for the CBA claim I signed subsequent guarantee documents but have not supplied those guarantee documents. I have lodged a complaint with the financial services ombudsman, verifying notice attached. I request a delay in these proceedings until that matter is resolved. 1. The Plaintiff now moves by Motion filed 23 June 2015 that the Defence be struck out. Although it is not strictly necessary for the purposes of determining whether or not the Defence should be struck out, the affidavit evidence discloses that the documents that were requested by the Second Defendant as referred to in his Defence were provided to that defendant at a date prior to the filing of the Defence. 2. I am informed that those documents show that although the initial guarantee signed by the Second Defendant was restricted to $100,000 the subsequent documents executed by him have raised the limit on the guarantee to the amount now sued upon. 3. The Defence does not provide any defence to the claim. Nor is it in the form required by the rules and the proper practice of pleading. 4. The Plaintiff's Motion must be acceded to. The Defence filed on 22 December 2014 by the Second Defendant is struck out. Particularly because the Second Defendant is appearing for himself it is appropriate that he be given one further chance to plead an appropriate defence that provides an arguable answer to the claim that is made. 5. For that purpose I will order that if the Second Defendant wishes to serve a further Defence to the claim, such Defence is to be filed and served by Thursday, 6 August 2015.