Hillsan Pty Limited v Vaccaro and Anor [2009] NSWSC 435

Hillsan Pty Limited v Vaccaro and Anor [2009] NSWSC 435

The plaintiff did not discharge the General Steel onus of showing that the defendants' case was hopeless or untenable. Although the defendants' existing pleadings were inadequate and did not properly plead fraud or discharge of the 2003 mortgage, their submissions disclosed a possible arguable defence and cross-claim based on the fraud exception in s 42 of the Real Property Act 1900 and alleged discharge of the mortgage. The proper course was to dismiss the strike out and summary judgment motion but require prompt service of amended pleadings with proper particulars.

Jurisdiction
Australia
Judgment Date
26 May 2009
Procedural Posture
Mortgage Possession Proceedings With Cross Claim Concerning Alleged Forged Mortgage / Plaintiff's Notice of Motion to Strike Out the Defence and Amended Statement of Cross Claim, Obtain Summary Judgment for Possession, and Obtain Leave to Issue a Writ of Possession
Outcome
Plaintiff's motion dismissed; defendants ordered to serve amended defence and cross-claim, with a further motion for leave required if the plaintiff does not consent to the amendments.
Legal Topics
['strike Out Application' 'summary Judgment' 'possession of Mortgaged Property' 'torrens Indefeasibility' 'fraud Exception' 'forged Mortgage' 'pleading Particulars of Fraud' 'amendment of Pleadings']
['civil Procedure' 'real Property' 'mortgages'] ['strike Out Application' 'summary Judgment' 'possession of Mortgaged Property' 'torrens Indefeasibility' 'fraud Exception' 'forged Mortgage' 'pleading Particulars of Fraud' 'amendment of Pleadings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Mortgage Possession Proceedings With Cross Claim Concerning Alleged Forged Mortgage / Plaintiff's Notice of Motion to Strike Out the Defence and Amended Statement of Cross Claim, Obtain Summary Judgment for Possession, and Obtain Leave to Issue a Writ of Possession

Legal Issues

  1. 1 ['Whether the defence to the amended statement of claim and the amended statement of cross-claim should be struck out under Rule 14.28 of the Uniform Civil Procedure Rules 2005.' "Whether the plaintiff had shown that the defendants' case was so untenable that it should be deprived of a trial." 'Whether the defendants should be permitted to amend their defence and cross-claim to plead the fraud exception in s 42 of the Real Property Act 1900 and discharge of the 2003 mortgage.' 'Whether allegations of fraud were pleaded with sufficient particulars.']

Ratio Decidendi

The plaintiff did not discharge the General Steel onus of showing that the defendants' case was hopeless or untenable. Although the defendants' existing pleadings were inadequate and did not properly plead fraud or discharge of the 2003 mortgage, their submissions disclosed a possible arguable defence and cross-claim based on the fraud exception in s 42 of the Real Property Act 1900 and alleged discharge of the mortgage. The proper course was to dismiss the strike out and summary judgment motion but require prompt service of amended pleadings with proper particulars.

Court Disposition

Plaintiff's motion dismissed; defendants ordered to serve amended defence and cross-claim, with a further motion for leave required if the plaintiff does not consent to the amendments.

Orders

  • ["The plaintiff's motion is dismissed." "The plaintiff pays Mr and Mrs Vaccaro's costs of the motion, as agreed or assessed." 'The defendants are ordered to serve the amended defence and cross-claim on which they propose to proceed by 5 June 2009.' 'Unless the plaintiff consents to the amendments, the defendants are...