Butterfield v Duyker [2016] NSWSC 1531

Supreme Court New South Wales

Medium Neutral Citation: Butterfield v Duyker [2016] NSWSC 1531 Hearing dates: 31 October 2016 Date of orders: 31 October 2016 Decision date: 31 October 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 29 September 2016 struck out. 2. The Plaintiffs have leave to seek default judgment against the Defendant when able to satisfy the Registrar of the matters required by the Rules. Catchwords: REAL PROPERTY – mortgages - possession of land – unrepresented defendant – Defence filed does not disclose defence – loan obtained used to repay prior loan secured by mortgage on the same property – principle in Collier v Morlend Finance – defence struck out – Plaintiffs permitted to obtain default judgment Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Collier v Moreland Finance (1989) 6 BPR 97,462; [1989] ANZ ConvR 515; (1989) ASC 55-176; (1989) NSW ConvR 55-473; BC8902259 Category: Principal judgment Parties: Terry Raymond Butterfield (First Plaintiff) Suzanne Francis Butterfield (Second Plaintiff) John Theodore Duyker (Defendant) Representation: Counsel: S W Climpson (Plaintiffs) No appearance (Defendant)

Solicitors: Sheridan Legal Pty Ltd (Plaintiffs) Unrepresented (Defendant) File Number(s): 2016/378328

Judgment 1. These proceedings commenced on 9 September 2016. 2. The Plaintiffs seek possession of land at 10 Widgee Avenue Banora Point and judgment for a sum of money said to be outstanding under a loan agreement entered into on 28 January 2014. The expiry date of the loan agreement, that is the date on which the principal sum was to be repaid, was 28 July 2014. 3. The funds borrowed, or a proportion of them, were used to pay out a prior mortgagee of the property at Banora Point. 4. The Defendant, who did not appear when the matter was first before the Registrar on 17 October and has not appeared this morning despite notification of today's hearing, has filed a Defence on 29 September which simply says this: 1. Cross-claim. 2. Waiting for police report as evidence. The pleading plainly does not disclose any defence to the Plaintiffs' claim. 1. Counsel for the Plaintiffs have taken me to some other documents the Defendant has filed in the Court and in particular to a handwritten document dated 11 October 2016. That document states that the Defendant does not effectively dispute that $177,033.68 inclusive of costs is owing to the Plaintiffs. 2. Counsel for the Plaintiffs have explained to me that the Defendant's issue with what is claimed in the present proceedings, derived from the documents filed, is that the Plaintiffs' solicitors are said to have overpaid the prior mortgagee to discharge that prior mortgagee's mortgage. However, on the principle of Collier v Moreland Finance (1989) 6 BPR 97,462; [1989] ANZ ConvR 515; (1989) ASC 55-176; (1989) NSW ConvR 55-473; BC8902259 the Defendant would ordinarily have no defence to the present Plaintiffs' claim for amounts paid to a prior mortgagee to discharge that prior mortgage. In circumstances where the Defendant accepts a liability for some $177,000 paid to that prior mortgagee, it does not appear to me that the Defendant has any defence to the Plaintiffs' claim for possession. 3. In those circumstances the Defence filed 29 September 2016 should be struck out. 4. I have given consideration to whether the Defendant should be given leave to re-plead on the basis that he does not appear to be legally represented. However, I am satisfied, both from his failure to appear at Court on two occasions now when the proceedings were listed to his knowledge, and on the basis of the material to which I have referred where he does not dispute a substantial portion of the Plaintiffs' claim, that it is not appropriate for leave to be given to re-plead. 5. The Plaintiffs have leave to seek default judgment against the Defendant when able to satisfy the Registrar of the matters required by the Rules. 6. I note that the Plaintiffs are entitled, as part of any costs ordered to be paid on the default judgment, to the costs of the appearances before the Registrar on 17 October 2016 and before me today.