Wong v Novakovic [2021] NSWSC 1381

Wong v Novakovic [2021] NSWSC 1381

Because the second defendant admitted signing the loan and mortgage documents and did not rely on non est factum, she could not deny the existence or authenticity of those documents while also seeking Contracts Review Act relief founded on her execution of them. The impugned denials and the cross-claim paragraphs were inconsistent and required to be struck out, and denials of other factual matters were inappropriate absent a positive case where non-admissions would suffice.

Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Claim for Possession of Land Based on Alleged Default Under a Loan Agreement and Second Mortgage / Plaintiff's Notice of Motion to Strike Out Paragraphs of the Second Defendant's Defence and Cross Claim
Outcome
The plaintiff's notice of motion succeeded; specified paragraphs of the second defendant's defence and cross-claim were struck out, with leave to re-plead and costs to the plaintiff.
Legal Topics
['pleadings' 'inconsistent Pleadings' 'strike Out' 'non Est Factum' 'contracts Review Act Relief' 'registered Mortgage']
['civil Procedure' 'real Property' 'contract Law' 'mortgages'] ['pleadings' 'inconsistent Pleadings' 'strike Out' 'non Est Factum' 'contracts Review Act Relief' 'registered Mortgage']

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

Claim for Possession of Land Based on Alleged Default Under a Loan Agreement and Second Mortgage / Plaintiff's Notice of Motion to Strike Out Paragraphs of the Second Defendant's Defence and Cross Claim

Legal Issues

  1. 1 ['Whether the second defendant could deny the existence or authenticity of the loan agreement and mortgage while admitting she signed the documents and seeking relief under the Contracts Review Act 1980 (NSW).' 'Whether the defence and cross-claim contained inconsistent or embarrassing pleadings that should be struck out.' 'Whether the second defendant should be permitted to plead denials of factual allegations where she did not know whether the matters were true and advanced no positive case.']

Ratio Decidendi

Because the second defendant admitted signing the loan and mortgage documents and did not rely on non est factum, she could not deny the existence or authenticity of those documents while also seeking Contracts Review Act relief founded on her execution of them. The impugned denials and the cross-claim paragraphs were inconsistent and required to be struck out, and denials of other factual matters were inappropriate absent a positive case where non-admissions would suffice.

Court Disposition

The plaintiff's notice of motion succeeded; specified paragraphs of the second defendant's defence and cross-claim were struck out, with leave to re-plead and costs to the plaintiff.

Orders

  • ['Paragraphs 8, 9, 10, 12, 13, 14 and 15 of the defence of the second defendant filed 11 June 2021 are struck out' 'Paragraphs 3 and 4 of the cross-claim filed 11 June 2021 are struck out.' 'Leave to the second defendant to re-plead. Any amended defence and cross-claim are to be filed and served by 18 November...