Reliance Financial Services Pty Ltd v Criniti [2018] NSWSC 543

Supreme Court New South Wales

Medium Neutral Citation: Reliance Financial Services Pty Ltd v Criniti [2018] NSWSC 543 Hearing dates: 12 & 26 April 2018 Date of orders: 02 May 2018 Decision date: 02 May 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) Grant leave to the second defendant to file an amended defence in the form of the document annexed and marked "C" to the affidavit of Hannah Sue Veldre sworn 27 March 2018;

(2) Grant leave to the second defendant to file a cross-claim in the form attached to an email from the second defendant's solicitor to my Associate date 26 April 2018;

(3) Dismiss the plaintiff's notice of motion dated 22 February 2018;

(4) The second defendant is to pay 50% of the plaintiff's costs of the plaintiff's notice of motion dated 22 February 2018 and the second defendant's notice of motion dated 27 March 2018, such costs to include costs thrown away by reason of the amendment to the second defendant's defence and the filing of the cross-claim. Catchwords: CIVIL PROCEDURE – summary disposal – application by plaintiff mortgagee for summary judgment for possession of land upon default of defendant mortgagor – summary judgment not available when defence of sham was neither hopeless nor unarguable – where plaintiff was silent as to whether it advanced funds pursuant to loan agreement

CIVIL PROCEDURE – pleadings – amendment – to plead that loan and mortgage documents were a sham – registration of mortgage did not preclude defence of sham - no inconsistency with previous pleadings – early application to amend worked no prejudice on plaintiff Legislation Cited: Consumer Credit (New South Wales) Act 1995 (NSW) s 5 Consumer Credit Code Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) ss 42, 57, 58 Cases Cited: Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131 Assets Co Ltd v Mere Roihi [1905] AC 176 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Egan v Egan [2018] NSWSC 202 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Lewis v Condon; Condon v Lewis (2013) 85 NSWLR 99; [2013] NSWCA 204 Tang v Bongreen [2003] NSWSC 824 Texts Cited: Nil Category: Procedural and other rulings Parties: Reliance Financial Services Pty Ltd (Plaintiff) Salvatore Paul Criniti (First Defendant) Rita Criniti (Second Defendant) Nick Combis (Third Defendant) Louisa Sijabat (Fourth Defendant) Westpac Banking Corporation t/as St George Bank (Fifth Defendant) Representation: Counsel: D Allen (Plaintiff) No appearance (First Defendant) A Fernon (Second Defendant) No appearances (Third and Fourth Defendants) Submitting appearance (Fifth Defendant)