Moussa v Vitamums Pty Ltd [2018] NSWSC 1044

Supreme Court New South Wales

Medium Neutral Citation: Moussa v Vitamums Pty Ltd [2018] NSWSC 1044 Hearing dates: 6 July 2018 Date of orders: 06 July 2018 Decision date: 06 July 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence filed 9 April 2018 struck out. 2. Amended Defence to be filed & served by 13 July 2018. 3. First and Second Defendants to pay the plaintiff's costs of 29 June 2018. Catchwords: LAND LAW – mortgages – possession on default – pleading – whether any defence is disclosed – unverified pleadings – defence struck out – leave to re-plead Legislation Cited: Contracts Review Act 1980 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Maha Moussa (Plaintiff) Vitamums Pty Ltd (Defendant) Representation: Counsel: M Zreika (Plaintiff) Z Hiramanek (Defendant)

Solicitors: T & T Lawyers (Plaintiff) State Law (Defendant) File Number(s): 2018/77736 Publication restriction: Nil

Judgment 1. These proceedings were commenced on 20 March 2018 seeking possession of land at XX Princes Highway, Riverstone which had been mortgaged to secure a loan agreement entered into in about June 2016. The statement of claim also seeks payment of the amount that is owing under the loan agreement. 2. The loan was made to the first defendant which is the owner of the land at Riverstone, and the second defendant guaranteed the loan. A default occurred in June 2017 and, when the section 57 notice served on 21 November 2017 was not complied with, the proceedings commenced. 3. A defence, which was filed on 9 April 2018, first pleads to each and every paragraph of the statement of claim. It seeks to distinguish between the knowledge of the defendants in respect of each of those paragraphs. However, the second defendant, who is a solicitor, and appears for both defendants, says that the first defendant is his company. 4. A number of matters, which are said in the defence to be not admitted must be within the knowledge of the defendants whether they are true or false; eg., paragraphs 4, 5, 6 and 7. The pleading, is not verified, contrary to r 14.23 UCPR. If the pleading was verified, it is difficult to see how much of the pleading could be maintained by reason of the non-admissions and the non-pleading to various paragraphs. 5. In addition there are other defences raised of unconscionability and a defence under the Contracts Review Act 1980 (NSW). Only the second defendant is able to plead a defence under the Contracts Review Act. However, the defences pleading these matters do not disclose what the facts are, which it is said led to the contract being unjust in the circumstances. Nor are any particulars provided relating to unconscionability and the claim under the Contracts Review Act. 6. A further defence alleges the property is unlawfully occupied by a third party not known to the defendants. It is not at all clear to me how that provides any defence to the claim. 7. The second defendant has today told me, in substance, that the issue between the parties is a matter that involves in accounting, perhaps in relation to the amount of interest charged under the loan and perhaps other fees. 8. The present defence filed 9 April 2018 does not plead a proper defence to the claim and must be struck out. 9. The defendants will be given leave to file an amended defence, if they so wish. Any such amended defence is to be filed and served by 13 July 2018. 10. I will stand the proceedings over to 2pm on 20 July 2018 to give further directions in relation to the matter. 11. The defendant should pay the plaintiff's costs of the appearance on 29 June 2018.