Westpac Banking Corporation v Nolan [2016] NSWSC 778

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Nolan [2016] NSWSC 778 Hearing dates: 9 June 2016 Date of orders: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) Ms Nolan's notice of motion filed 19 April 2016 is dismissed.

(2) The defence and cross claim are struck out.

Judgment

The plaintiff is entitled to possession of the property.

The Court further orders that:

(3) Costs are reserved. Catchwords: REAL PROPERTY – possession of land – default judgment

PROCEDURE – civil – pleadings – application to strike out defence and cross claim – bankrupt defendant's property vested in trustee – trustee elected not to pursue defence and cross claim – defence operates as impediment to entry of judgment for possession – cross claim causes prejudice, embarrassment or delay and is an abuse of process – defence and cross claim struck out

PROCEDURE – civil – parties – standing – bankrupt defendant sought orders declaring she had standing despite sequestration order made by Federal Circuit Court under the Bankruptcy Act 1966 (Cth) or leave to continue to be heard and/or appear in these proceedings – defendant has no standing to defend claims or prosecute cross claim – leave refused Legislation Cited: Bankruptcy Act 1966 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bendigo Bank Ltd v Demaria [2001] VSC 218 Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124 Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 Qd R 282 NAB v Darroch [2010] NSWSC 1202 NAB v Strik [2009] NSWSC 184 Re-Engine Pty Ltd (in liq) v Fergusson [2007] VSC 57 Category: Procedural and other rulings Parties: Westpac Banking Corporation (Plaintiff) Catherine Marie Nolan Representation: Counsel: M Elliott (Plaintiff) B Zipser (Ms Nolan)