Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No.5) [2014] NSWSC 949

Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No.5) [2014] NSWSC 949

There is no triable issue or viable defence articulated by Mr Birch to the receivers' claim for possession. The statement of claim and proposed amendments are incoherent, lack particularity, and are contradicted by evidence. Mr Birch has failed to provide any admissible evidence in support of his allegations. The proceedings constitute an abuse of process and are vexatious and embarrassing, warranting summary judgment for possession and the dismissal and striking out of the defence and cross-claim.

Parties
Plaintiff (2013/282086), Fifth Defendant (2011/382861): Christopher Brian Birch; First Defendant (2013/282086): National Australia Bank Limited; Second Defendant (2013/282086), Plaintiff (2011/382861): Christopher Robert Campbell; Third Defendant (2013/282086), Plaintiff (2011/382861): Vaughan Neil Strawbridge; First Defendant (2011/382861): Illawarra Golf Club Pty Limited; Second Defendant (2011/382861): David Hawkins; Third Defendant (2011/382861): Richard Dorey; Fourth Defendant (2011/382861): Stephen Dorey
Jurisdiction
Australia
Judgment Date
18 July 2014
Procedural Posture
Civil Procedure (applications for Summary Judgment and Dismissal) / Judgment on Summary Judgment Application and Application to Strike Out Defence/cross Claim
Outcome
Summary judgment granted; defence and cross-claim dismissed and struck out; possession granted to plaintiffs; Mr Birch's separate proceedings dismissed as abuse of process; costs ordered against Mr Birch (subject to application for different order within 7 days).
Legal Topics
Summary Judgment, Strike Out Application, Abuse of Process, Mortgage Possession, Unjust Contract, Vexatious Proceedings
Civil Procedure Property Law Contract Law Summary Judgment Strike Out Application Abuse of Process Mortgage Possession Unjust Contract +1 more

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Parties

Christopher Brian Birch

Plaintiff (2013/282086), Fifth Defendant (2011/382861)

National Australia Bank Limited

First Defendant (2013/282086)

Christopher Robert Campbell

Second Defendant (2013/282086), Plaintiff (2011/382861)

Vaughan Neil Strawbridge

Third Defendant (2013/282086), Plaintiff (2011/382861)

Illawarra Golf Club Pty Limited

First Defendant (2011/382861)

David Hawkins

Second Defendant (2011/382861)

Richard Dorey

Third Defendant (2011/382861)

Stephen Dorey

Fourth Defendant (2011/382861)

Procedural Posture

Civil Procedure (applications for Summary Judgment and Dismissal) / Judgment on Summary Judgment Application and Application to Strike Out Defence/cross Claim

Legal Issues

  1. 1 Whether the fifth defendant (Mr Birch) has an arguable defence or viable cross-claim to the receivers' claim for possession
  2. 2 Whether Mr Birch's statement of claim discloses a cause of action or defence
  3. 3 Whether the proceedings instituted by Mr Birch are an abuse of process

Ratio Decidendi

There is no triable issue or viable defence articulated by Mr Birch to the receivers' claim for possession. The statement of claim and proposed amendments are incoherent, lack particularity, and are contradicted by evidence. Mr Birch has failed to provide any admissible evidence in support of his allegations. The proceedings constitute an abuse of process and are vexatious and embarrassing, warranting summary judgment for possession and the dismissal and striking out of the defence and cross-claim.

Court Disposition

Summary judgment granted; defence and cross-claim dismissed and struck out; possession granted to plaintiffs; Mr Birch's separate proceedings dismissed as abuse of process; costs ordered against Mr Birch (subject to application for different order within 7 days).

Orders

  • In proceedings 2011/382861: (1) Dismiss fifth defendant's defence and cross-claim pursuant to r 13.4(1)(a),(b),(c) UCPR; (2) Strike out in entirety fifth defendant's defence and cross-claim under r 14.28(1)(a),(b),(c); (3) Plaintiffs entitled to possession of land known as 87 Princes Highway, Maddens Plains, NSW...
  • In proceedings 2013/282086: (1) Dismiss proceedings as an abuse of process under r 13.4 UCPR; (2) Mr Birch to pay costs (subject to application within 7 days).