Westpac Banking Corporation Ltd v Kay (No 3) [2020] NSWSC 206

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation Ltd v Kay (No 3) [2020] NSWSC 206 Hearing dates: 4 March 2020 Date of orders: 12 March 2020 Decision date: 12 March 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) The amended defence filed by the second defendant on 29 November 2019 is struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW);

(2) The first cross-claim filed by the second defendant on 6 September 2019 is struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW);

(3) Refuse leave to the second defendant to file an amended cross-claim;

(4) Leave to the plaintiff to move for default judgment for possession;

(5) The second defendant is to pay the plaintiff's costs of the notice of motion filed 10 December 2019. Catchwords: CIVIL PROCEDURE - pleadings – striking out - application to strike out defence as disclosing no defence to the claim – claim for possession of land as a result of default under mortgage – where mortgage, advance and default admitted – claim that land bought by defendant as trustee for trust – no defence disclosed – application to strike out cross-claim – claim for breach of National Consumer Credit Protection Act 2009 (Cth) - where elements of cause of action not pleaded – where claim pleaded in cross-claim was statute-barred – pleadings struck out Legislation Cited: National Consumer Credit Protection Act 2009 (Cth) ss 117, 130, 179 National Credit Code s 88 Real Property Act 1900 (NSW) s57 Uniform Civil Procedure Rules 2005 (NSW) rr 14.26, 14.28. 16.2 Cases Cited: Trust Co. Fiduciary Services Ltd v Hassarati (No. 3) [2012] NSWSC 979 Westpac Banking Corporation Ltd v Kay [2019] NSWSC 929 Texts Cited: Nil Category: Procedural and other rulings Parties: Westpac Banking Corporation Limited (Plaintiff) Paul William Kay (First Defendant) Thomas James Clinton (Second Defendant) Representation: Counsel: S Docker (Plaintiff) No appearance (First Defendant) R Daoud (Second Defendant)