Commonwealth Bank of Australia v Sandra Lee Tarrant [2011] NSWSC 1087

Commonwealth Bank of Australia v Sandra Lee Tarrant [2011] NSWSC 1087

The first defendant's proposed Contracts Review Act defence was weak and the pleading required amendment, but it was not hopeless. Because such a defence is generally inappropriate to determine on an application for summary judgment, the plaintiff's motion for summary judgment, possession or strike out was dismissed and the first defendant was granted leave to amend to plead the relief sought under the Contracts Review Act 1980.

Jurisdiction
Australia
Judgment Date
20 September 2011
Procedural Posture
Civil Proceeding Concerning Mortgage Debt and Possession, With Applications for Summary Judgment, Strike Out and Leave to Amend Defence / Notices of Motion Dated 25 March 2011
Outcome
Plaintiff's notice of motion dismissed; first defendant granted leave to file an amended defence; matter listed for status conference; costs reserved.
Legal Topics
['summary Judgment' 'strike Out of Defence' 'leave to Amend Defence' 'contracts Review Act 1980' 'unjust Contracts' 'undue Influence' 'mortgage Possession']
['civil Procedure' 'contracts' 'equity' 'banking and Finance' 'real Property'] ['summary Judgment' 'strike Out of Defence' 'leave to Amend Defence' 'contracts Review Act 1980' 'unjust Contracts' 'undue Influence' 'mortgage Possession']

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Procedural Posture

Civil Proceeding Concerning Mortgage Debt and Possession, With Applications for Summary Judgment, Strike Out and Leave to Amend Defence / Notices of Motion Dated 25 March 2011

Legal Issues

  1. 1 ['Whether the plaintiff should have summary judgment against the first defendant under UCPR 13.1.' "Whether the first defendant's defence should be struck out under UCPR 14.28 and judgment entered for the plaintiff." 'Whether the first defendant should be granted leave to file an amended defence pleading relief under the Contracts Review Act 1980.' "Whether the first defendant's proposed Contracts Review Act and undue influence defence was so hopeless that it should not proceed to trial."]

Ratio Decidendi

The first defendant's proposed Contracts Review Act defence was weak and the pleading required amendment, but it was not hopeless. Because such a defence is generally inappropriate to determine on an application for summary judgment, the plaintiff's motion for summary judgment, possession or strike out was dismissed and the first defendant was granted leave to amend to plead the relief sought under the Contracts Review Act 1980.

Court Disposition

Plaintiff's notice of motion dismissed; first defendant granted leave to file an amended defence; matter listed for status conference; costs reserved.

Orders

  • ["The plaintiff's notice of motion dated 25 March 2011 is dismissed." 'The defendant is granted leave to file an amended defence that pleads the relief sought under the Contracts Review Act 1980 within 14 days.' 'The matter is listed for a status conference before the Registrar on 11 October 2011 at 9.00am.' 'Costs...