Moussa v Vitamums Pty Ltd [2018] NSWSC 1044

Moussa v Vitamums Pty Ltd [2018] NSWSC 1044

The defence filed on 9 April 2018 did not plead a proper defence because it was unverified, contained non-admissions about matters within the defendants' knowledge, failed to plead facts or particulars supporting unconscionability or a Contracts Review Act defence, and did not clearly explain how alleged occupation by an unknown third party answered the claim. It was therefore struck out, with leave to file and serve an amended defence.

Jurisdiction
Australia
Judgment Date
06 July 2018
Procedural Posture
Proceedings Seeking Possession of Mortgaged Land and Payment of the Amount Owing Under a Loan Agreement / Procedural Ruling on Whether the Defence Disclosed Any Defence; Defence Struck Out With Leave to Re Plead
Outcome
Defence struck out; leave granted to file and serve an amended defence; costs ordered against the First and Second Defendants for the appearance on 29 June 2018.
Legal Topics
['mortgages' 'possession on Default' 'pleadings' 'unverified Pleadings' 'unconscionability' 'contracts Review Act Defence' 'costs']
['land Law' 'civil Procedure' 'contract Law'] ['mortgages' 'possession on Default' 'pleadings' 'unverified Pleadings' 'unconscionability' 'contracts Review Act Defence' 'costs']

Case Brief

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Procedural Posture

Proceedings Seeking Possession of Mortgaged Land and Payment of the Amount Owing Under a Loan Agreement / Procedural Ruling on Whether the Defence Disclosed Any Defence; Defence Struck Out With Leave to Re Plead

Legal Issues

  1. 1 ["Whether the defence filed on 9 April 2018 disclosed a proper defence to the plaintiff's claim for possession and payment under the loan agreement." 'Whether the defence was defective because it was not verified contrary to r 14.23 UCPR.' 'Whether the pleaded defences of unconscionability and under the Contracts Review Act 1980 (NSW) were supported by facts or particulars.' 'Whether alleged unlawful occupation of the property by an unknown third party provided a defence to the claim.']

Ratio Decidendi

The defence filed on 9 April 2018 did not plead a proper defence because it was unverified, contained non-admissions about matters within the defendants' knowledge, failed to plead facts or particulars supporting unconscionability or a Contracts Review Act defence, and did not clearly explain how alleged occupation by an unknown third party answered the claim. It was therefore struck out, with leave to file and serve an amended defence.

Court Disposition

Defence struck out; leave granted to file and serve an amended defence; costs ordered against the First and Second Defendants for the appearance on 29 June 2018.

Orders

  • ['Defence filed 9 April 2018 struck out.' 'Amended Defence to be filed and served by 13 July 2018.' "First and Second Defendants to pay the plaintiff's costs of 29 June 2018." 'Proceedings stood over to 2pm on 20 July 2018 for further directions.']