Bendigo and Adelaide Bank Ltd v O’Neill [2015] NSWSC 1768

Bendigo and Adelaide Bank Ltd v O’Neill [2015] NSWSC 1768

The Defendants' defence was not signed or sworn and did not comply with the rules; no substantive, evidenced defence was filed despite extensions. Notices required under the National Credit Code were properly served and received. There was default under the loan agreement and mortgage, and no payments had been made after 9 December 2014. Accordingly, the First Defendant's Defence was struck out and the Plaintiff was granted leave to apply for default judgment.

Jurisdiction
Australia
Judgment Date
25 November 2015
Procedural Posture
Civil / Interlocutory (application to Strike Out Defence, Procedural Orders)
Outcome
Defence struck out; Plaintiff granted leave to move for default judgment.
Legal Topics
['mortgage Possession' 'default Judgment' 'defence Requirements']
['real Property' 'civil Procedure'] ['mortgage Possession' 'default Judgment' 'defence Requirements']

Case Brief

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Procedural Posture

Civil / Interlocutory (application to Strike Out Defence, Procedural Orders)

Legal Issues

  1. 1 ['Whether the Defendants were in default of the loan agreement and mortgage' 'Whether sufficient notice under the National Credit Code was given' 'Whether there was any arguable defence to possession and monetary claim' 'Whether Defence complied with procedural requirements']

Ratio Decidendi

The Defendants' defence was not signed or sworn and did not comply with the rules; no substantive, evidenced defence was filed despite extensions. Notices required under the National Credit Code were properly served and received. There was default under the loan agreement and mortgage, and no payments had been made after 9 December 2014. Accordingly, the First Defendant's Defence was struck out and the Plaintiff was granted leave to apply for default judgment.

Court Disposition

Defence struck out; Plaintiff granted leave to move for default judgment.

Orders

  • ["First Defendant's Defence dated 2 September 2015 struck out." 'Plaintiff granted leave to move for default judgment.']