Ward v Westpac Banking Corporation Limited [2024] NSWSC 669

Ward v Westpac Banking Corporation Limited [2024] NSWSC 669

To permit the plaintiffs to maintain their defence or draft defence is an abuse of process because it would circumvent the Court's orders for security in respect, and dismissal, of their substantive claim. The only practical course is to strike out the entire defence and not grant leave to replead.

Parties
First Plaintiff/second Cross Defendant: Roger Ward; Second Plaintiff/third Cross Defendant: Peter Mahommed; First Defendant/first Cross Claimant: Westpac Banking Corporation Limited; Third Defendant/first Cross Defendant: Cox as Administrator of David William Dixon's Estate
Jurisdiction
Australia
Judgment Date
31 May 2024
Procedural Posture
Civil Equity / Procedural Ruling on Motions to Strike Out Defence and Dismiss Plaintiffs' Motion
Outcome
Defence struck out without leave to replead; plaintiffs' motion dismissed.
Legal Topics
Striking Out Pleadings, Abuse of Process, Security for Costs, Possession of Land
Civil Procedure Equity Striking Out Pleadings Abuse of Process Security for Costs Possession of Land

Case Brief

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Parties

Roger Ward

First Plaintiff/second Cross Defendant

Peter Mahommed

Second Plaintiff/third Cross Defendant

Westpac Banking Corporation Limited

First Defendant/first Cross Claimant

Cox as Administrator of David William Dixon's Estate

Third Defendant/first Cross Defendant

Procedural Posture

Civil Equity / Procedural Ruling on Motions to Strike Out Defence and Dismiss Plaintiffs' Motion

Legal Issues

  1. 1 Whether it constitutes an abuse of process for plaintiffs to rely on previously struck out claims in their defence to the bank's cross-claim for possession
  2. 2 Whether to allow the plaintiffs to replead their defence
  3. 3 Standing of plaintiffs in the cross-claim proceedings after dismissal of their substantive claim

Ratio Decidendi

To permit the plaintiffs to maintain their defence or draft defence is an abuse of process because it would circumvent the Court's orders for security in respect, and dismissal, of their substantive claim. The only practical course is to strike out the entire defence and not grant leave to replead.

Court Disposition

Defence struck out without leave to replead; plaintiffs' motion dismissed.

Orders

  • The defence of Roger Ward and Peter Mahommed to the cross-claim is struck out without leave to replead.
  • The plaintiffs' motion is dismissed.