ING Bank Australia Ltd v Bucknell [2016] NSWSC 1049

ING Bank Australia Ltd v Bucknell [2016] NSWSC 1049

The Defence was struck out because it contained an embarrassing pleading that allegations were neither admitted nor denied and because the pleaded reliance on financial hardship policies did not properly plead an estoppel, no representations having been identified. Despite the deficiencies and prior warning, the Defendants were given one further short opportunity to serve a proposed Amended Defence.

Jurisdiction
Australia
Judgment Date
29 July 2016
Procedural Posture
Possession of Land Proceedings Arising From Mortgage Default / Procedural Ruling on Sufficiency of Defence and Leave to Re Plead
Outcome
Defence dated 16 June 2016 struck out; Defendants given a short period to serve a proposed Amended Defence and apply for leave to file it.
Legal Topics
['mortgages' 'possession of Land' 'pleading of Defence' 'embarrassing Pleading' 'estoppel by Representation' 'leave to Re Plead']
['real Property' 'civil Procedure'] ['mortgages' 'possession of Land' 'pleading of Defence' 'embarrassing Pleading' 'estoppel by Representation' 'leave to Re Plead']

Case Brief

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Procedural Posture

Possession of Land Proceedings Arising From Mortgage Default / Procedural Ruling on Sufficiency of Defence and Leave to Re Plead

Legal Issues

  1. 1 ['Whether a Defence pleading that allegations were neither admitted nor denied should be allowed to stand.' 'Whether paragraphs pleading financial hardship policies and estoppel properly pleaded an estoppel defence.' "Whether r 14.11 of the Uniform Civil Procedure Rules 2005 (NSW) applied to the Defendants' pleading." 'Whether the Defendants should be given further time to plead a defence.']

Ratio Decidendi

The Defence was struck out because it contained an embarrassing pleading that allegations were neither admitted nor denied and because the pleaded reliance on financial hardship policies did not properly plead an estoppel, no representations having been identified. Despite the deficiencies and prior warning, the Defendants were given one further short opportunity to serve a proposed Amended Defence.

Court Disposition

Defence dated 16 June 2016 struck out; Defendants given a short period to serve a proposed Amended Defence and apply for leave to file it.

Orders

  • ['Defence dated 16 June 2016 struck out.' 'Any proposed Amended Defence to be served by 10 August 2016.' 'If the Defendants wish to file a further Defence, they are to serve a copy of the proposed Defence by close of business on Wednesday 10 August 2016, and to make application on 12 August 2016 before Davies J to...