Butterfield v Duyker [2016] NSWSC 1531

Butterfield v Duyker [2016] NSWSC 1531

The Defence was struck out because it plainly did not disclose any defence to the Plaintiffs' claim, the Defendant's asserted issue about payment to the prior mortgagee would ordinarily provide no defence under Collier v Moreland Finance, the Defendant did not effectively dispute substantial liability, and his repeated non-appearance made leave to re-plead inappropriate.

Jurisdiction
Australia
Judgment Date
31 October 2016
Procedural Posture
Proceedings for Possession of Land and Judgment for Money Outstanding Under a Loan Agreement / Defence Struck Out; Plaintiffs Granted Leave to Seek Default Judgment
Outcome
Defence dated 29 September 2016 struck out; Plaintiffs granted leave to seek default judgment against the Defendant when able to satisfy the Registrar of the matters required by the Rules.
Legal Topics
['possession of Land' 'strike Out of Defence' 'default Judgment' 'unrepresented Defendant' 'prior Mortgage Discharge']
['real Property' 'mortgages' 'civil Procedure'] ['possession of Land' 'strike Out of Defence' 'default Judgment' 'unrepresented Defendant' 'prior Mortgage Discharge']

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Procedural Posture

Proceedings for Possession of Land and Judgment for Money Outstanding Under a Loan Agreement / Defence Struck Out; Plaintiffs Granted Leave to Seek Default Judgment

Legal Issues

  1. 1 ["Whether the Defence dated 29 September 2016 disclosed any defence to the Plaintiffs' claim for possession and money outstanding under the loan agreement." 'Whether the Defendant should be given leave to re-plead despite being unrepresented.' 'Whether the Plaintiffs should have leave to seek default judgment.']

Ratio Decidendi

The Defence was struck out because it plainly did not disclose any defence to the Plaintiffs' claim, the Defendant's asserted issue about payment to the prior mortgagee would ordinarily provide no defence under Collier v Moreland Finance, the Defendant did not effectively dispute substantial liability, and his repeated non-appearance made leave to re-plead inappropriate.

Court Disposition

Defence dated 29 September 2016 struck out; Plaintiffs granted leave to seek default judgment against the Defendant when able to satisfy the Registrar of the matters required by the Rules.

Orders

  • ['Defence dated 29 September 2016 struck out.' 'The Plaintiffs have leave to seek default judgment against the Defendant when able to satisfy the Registrar of the matters required by the Rules.']