Shiina v Park [2017] NSWSC 966

Shiina v Park [2017] NSWSC 966

The Defence admitted the loan and mortgage but otherwise contained unparticularised denials which did not make clear what was disputed and did not disclose any defence to the claim. Those denials amounted to a plea of the general issue contrary to r 14.20 Uniform Civil Procedure Rules 2005 (NSW), so the Defence was struck out, with the unrepresented Defendants given one further opportunity to file a defence disclosing a defence to the claim.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Proceedings Seeking Possession of Land and Claiming Money Pursuant to a Deed of Agreement and Mortgage / Procedural Ruling on Striking Out Defence
Outcome
Defence filed 24 May 2017 struck out, with leave for the Defendants to file and serve a further defence by 2 August 2017 and liberty for the Plaintiff to move for default judgment if no defence is filed by that date.
Legal Topics
['mortgages' 'possession of Land' 'general Issue Pleading' 'strike Out of Defence' 'default Judgment']
['real Property' 'civil Procedure'] ['mortgages' 'possession of Land' 'general Issue Pleading' 'strike Out of Defence' 'default Judgment']

Case Brief

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Procedural Posture

Proceedings Seeking Possession of Land and Claiming Money Pursuant to a Deed of Agreement and Mortgage / Procedural Ruling on Striking Out Defence

Legal Issues

  1. 1 ['Whether the Defence filed on 24 May 2017 disclosed any defence to the claim.' 'Whether the unparticularised denials in the Defence amounted to an impermissible plea of the general issue.' 'Whether the Defence should be struck out with leave to re-plead.']

Ratio Decidendi

The Defence admitted the loan and mortgage but otherwise contained unparticularised denials which did not make clear what was disputed and did not disclose any defence to the claim. Those denials amounted to a plea of the general issue contrary to r 14.20 Uniform Civil Procedure Rules 2005 (NSW), so the Defence was struck out, with the unrepresented Defendants given one further opportunity to file a defence disclosing a defence to the claim.

Court Disposition

Defence filed 24 May 2017 struck out, with leave for the Defendants to file and serve a further defence by 2 August 2017 and liberty for the Plaintiff to move for default judgment if no defence is filed by that date.

Orders

  • ['Defence filed 24 May 2017 struck out.' 'Defendant to file and serve a defence by 2 August 2017. If the defence is not filed by 2 August 2017 the Plaintiff is granted liberty to move for default judgment against both Defendants.' 'Listed for Directions before Davies J at 9:30am on 3 August 2017.' "Parties granted...