Dabboussi v Ilend Capital Pty Ltd [2024] NSWSC 1055

Dabboussi v Ilend Capital Pty Ltd [2024] NSWSC 1055

The defendant was in default because it failed to comply with orders to file responsive evidence, and Part 16 UCPR could be applied by analogy in summons proceedings through s 61(3) of the Civil Procedure Act 2005 (NSW). Default judgment was appropriate only for removal of the caveat because the accepted AFCA determination bound the defendant to remove it, leaving no serious question to be tried about the claimed caveatable interest. The PPSR relief was refused because no amendment demand under s 178 Personal Property Securities Act 2009 (Cth) was evidenced, and the declaration was refused because the binding AFCA determination already resolved the alleged liability and a declaration...

Jurisdiction
Australia
Judgment Date
21 August 2024
Procedural Posture
Equity Real Property List; Amended Summons Seeking Removal of Caveat, PPSR Relief, Declaratory Relief and Costs / Application on the Papers for Default Judgment Under R 16.10 Uniform Civil Procedure Rules 2005 (nsw) and S 61(3)(g) Civil Procedure Act 2005 (nsw), Alternatively Summary Judgment Under R 13.1 UCPR
Outcome
Default judgment entered for the plaintiffs only in respect of removal of the caveat; the amended summons and amended notice of motion were otherwise dismissed, with the defendant to pay the plaintiffs' costs.
Legal Topics
['default Judgment' 'proceedings Commenced by Summons' 'removal of Caveat' 'personal Property Securities Register' 'declaratory Relief' 'afca Determination']
['civil Procedure' 'real Property' 'personal Property Securities'] ['default Judgment' 'proceedings Commenced by Summons' 'removal of Caveat' 'personal Property Securities Register' 'declaratory Relief' 'afca Determination']

Case Brief

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Procedural Posture

Equity Real Property List; Amended Summons Seeking Removal of Caveat, PPSR Relief, Declaratory Relief and Costs / Application on the Papers for Default Judgment Under R 16.10 Uniform Civil Procedure Rules 2005 (nsw) and S 61(3)(g) Civil Procedure Act 2005 (nsw), Alternatively Summary Judgment Under R 13.1 UCPR

Legal Issues

  1. 1 ['Whether default judgment could be entered in proceedings commenced by summons by applying Part 16 of the UCPR by analogy through s 61(3) of the Civil Procedure Act 2005 (NSW).' 'Whether the defendant was in default by failing to comply with orders requiring responsive evidence.' 'Whether the caveat over the Bass Hill Property should be removed under s 74MA Real Property Act 1900 (NSW).' 'Whether default judgment should be entered requiring removal of security interests registered on the Personal Property Securities Register.' 'Whether the Court should grant a declaration that the plaintiffs are not liable to the defendant under the brokerage agreement.']

Ratio Decidendi

The defendant was in default because it failed to comply with orders to file responsive evidence, and Part 16 UCPR could be applied by analogy in summons proceedings through s 61(3) of the Civil Procedure Act 2005 (NSW). Default judgment was appropriate only for removal of the caveat because the accepted AFCA determination bound the defendant to remove it, leaving no serious question to be tried about the claimed caveatable interest. The PPSR relief was refused because no amendment demand under s 178 Personal Property Securities Act 2009 (Cth) was evidenced, and the declaration was refused because the binding AFCA determination already resolved the alleged liability and a declaration...

Court Disposition

Default judgment entered for the plaintiffs only in respect of removal of the caveat; the amended summons and amended notice of motion were otherwise dismissed, with the defendant to pay the plaintiffs' costs.

Orders

  • ['Judgment for the plaintiffs pursuant to s 61(3) Civil Procedure Act 2005 (NSW).' 'Order that pursuant to s 74MA of the Real Property Act 1900 (NSW), the caveat dealing AS596060 in relation to Lot 12 in DP 872771 with folio identifier 12/872771 be withdrawn by 5pm on 28 August 2024.' 'Amended summons and amended...