Rodney Kent & Anor v Batmor Mortgages Pty Ltd & Ors [2021] NSWSC 326

Rodney Kent & Anor v Batmor Mortgages Pty Ltd & Ors [2021] NSWSC 326

Leave to file the proposed defence and cross-claim was refused because Batmor failed to explain its delay in filing them, failed to provide clear evidence as to who decided on Batmor's behalf to bring the proposed defence and cross-claim, and failed to show that the proposed defence and cross-claim had real prospects of success. The evidence did not support Batmor's allegations that Kent owed continuing fiduciary duties when the 2019 Deed was negotiated, that the acknowledged $1.6 million debt was manufactured, or that the assignment mechanism was a dishonest scheme adverse to Batmor or the Trust. Because Batmor accepted that judgment should be entered if leave was refused, judgment was...

Jurisdiction
Australia
Judgment Date
18 March 2021
Procedural Posture
Equity Real Property List; Civil Procedure Default Judgment and Leave to File Defence and Cross Claim Out of Time / Notice of Motion by the Plaintiffs for Default or Summary Judgment and Notice of Motion by the First Defendant for Leave to File a Defence and Cross Claim
Outcome
First Defendant's motion for leave to file the proposed defence and cross-claim refused; judgment entered for the Plaintiffs against the First Defendant.
Legal Topics
['default Judgment' 'summary Judgment' 'leave to File Defence Out of Time' 'leave to File Cross Claim Out of Time' 'unregistered Mortgage and Caveat' 'fiduciary Duties' 'penalty Clauses' 'payment of Surplus Sale Proceeds']
['civil Procedure' 'equity' 'real Property'] ['default Judgment' 'summary Judgment' 'leave to File Defence Out of Time' 'leave to File Cross Claim Out of Time' 'unregistered Mortgage and Caveat' 'fiduciary Duties' 'penalty Clauses' 'payment of Surplus Sale Proceeds']

Case Brief

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Procedural Posture

Equity Real Property List; Civil Procedure Default Judgment and Leave to File Defence and Cross Claim Out of Time / Notice of Motion by the Plaintiffs for Default or Summary Judgment and Notice of Motion by the First Defendant for Leave to File a Defence and Cross Claim

Legal Issues

  1. 1 ['Whether Batmor should be granted leave to file a defence and cross-claim approximately 10 months after service of the Amended Statement of Claim.' 'Whether Batmor adequately explained its failure to file a defence and cross-claim within the time required by the UCPR and its later delay.' "Whether Batmor's proposed defence and cross-claim had reasonable prospects of success." 'Whether judgment should be entered for Kent against Batmor and the surplus sale proceeds paid to Kent if leave was refused.']

Ratio Decidendi

Leave to file the proposed defence and cross-claim was refused because Batmor failed to explain its delay in filing them, failed to provide clear evidence as to who decided on Batmor's behalf to bring the proposed defence and cross-claim, and failed to show that the proposed defence and cross-claim had real prospects of success. The evidence did not support Batmor's allegations that Kent owed continuing fiduciary duties when the 2019 Deed was negotiated, that the acknowledged $1.6 million debt was manufactured, or that the assignment mechanism was a dishonest scheme adverse to Batmor or the Trust. Because Batmor accepted that judgment should be entered if leave was refused, judgment was...

Court Disposition

First Defendant's motion for leave to file the proposed defence and cross-claim refused; judgment entered for the Plaintiffs against the First Defendant.

Orders

  • ['Leave for Batmor to file the proposed defence and cross-claim is refused.' 'Judgment is entered in favour of Kent against Batmor in the amount of $1,601,340.85.' "Batmor is to pay Kent's costs of the proceedings against Batmor as agreed or assessed." 'There is to be no order as to costs as between the Plaintiffs...