Perpetual Corporate Trust Ltd v RZHZ Enterprises Pty Ltd [2022] NSWSC 1141

Perpetual Corporate Trust Ltd v RZHZ Enterprises Pty Ltd [2022] NSWSC 1141

The amended defence admitted the loan, the mortgage and the default, and pleaded only that the first defendant wished to refinance within 21 days. It disclosed no defence to the plaintiff's claim and should not be allowed to stand. Striking out the defence did not contravene s 471B of the Corporations Act 2001 (Cth), although the plaintiff was otherwise constrained by that provision from continuing its action against the first defendant.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Civil Procedure; Claim for Possession of Land and Judgment for Outstanding Loan Debt / Procedural Ruling on Leave for First Defendant's Lawyers to Cease Acting and Plaintiff's Application to Strike Out the First Defendant's Amended Defence
Outcome
First defendant's lawyers granted leave to cease acting; first defendant's amended defence struck out; no order as to costs.
Legal Topics
['strike Out of Defence' 'winding Up' 'secured Transactions' 'mortgage Enforcement' 'leave to Cease Acting']
['civil Procedure' 'corporations' 'banking and Finance' 'property'] ['strike Out of Defence' 'winding Up' 'secured Transactions' 'mortgage Enforcement' 'leave to Cease Acting']

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Procedural Posture

Civil Procedure; Claim for Possession of Land and Judgment for Outstanding Loan Debt / Procedural Ruling on Leave for First Defendant's Lawyers to Cease Acting and Plaintiff's Application to Strike Out the First Defendant's Amended Defence

Legal Issues

  1. 1 ["Whether the first defendant's amended defence could be struck out after a liquidator was appointed to the first defendant." 'Whether striking out the amended defence would contravene s 471B of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The amended defence admitted the loan, the mortgage and the default, and pleaded only that the first defendant wished to refinance within 21 days. It disclosed no defence to the plaintiff's claim and should not be allowed to stand. Striking out the defence did not contravene s 471B of the Corporations Act 2001 (Cth), although the plaintiff was otherwise constrained by that provision from continuing its action against the first defendant.

Court Disposition

First defendant's lawyers granted leave to cease acting; first defendant's amended defence struck out; no order as to costs.

Orders

  • ['Leave to lawyers acting for the first defendant to cease to act.' "In accordance with Practice Note 17 of SC CL 6, the First Defendant's Amended Defence filed on or about 27 June 2022 is struck out." 'No order as to costs.']