Perpetual Trustee Company Limited v Varma [2011] NSWSC 1322

Perpetual Trustee Company Limited v Varma [2011] NSWSC 1322

The Defendants' proposed pleadings disclosed no proper defence to the claim and relied entirely on a cross-claim, which was barred by the express 'no set-off' clause in the mortgage; additionally, the cross-claim was legally embarrassing and failed to properly plead causes of action. Defendants, after multiple opportunities, failed to remedy defects in their pleadings, so the Notice of Motion was dismissed.

Jurisdiction
Australia
Judgment Date
21 October 2011
Procedural Posture
Principal Judgment / Motion to Set Aside Default Judgment and to File Amended Defence and Cross Claim
Outcome
Notice of Motion dismissed
Legal Topics
['judgments Setting Aside' 'cross Claims' 'set Off Clauses in Mortgages' 'pleadings' 'unconscionable Conduct' 'misrepresentation' 'damages']
['civil Procedure' 'contract Law' 'consumer Protection'] ['judgments Setting Aside' 'cross Claims' 'set Off Clauses in Mortgages' 'pleadings' 'unconscionable Conduct' 'misrepresentation' 'damages']

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Procedural Posture

Principal Judgment / Motion to Set Aside Default Judgment and to File Amended Defence and Cross Claim

Legal Issues

  1. 1 ['Whether default judgment should be set aside' 'Whether leave should be granted to file amended defence and cross-claim' 'Whether pleadings disclose a proper defence or cause of action' "Effect of 'no set-off' clause in mortgage"]

Ratio Decidendi

The Defendants' proposed pleadings disclosed no proper defence to the claim and relied entirely on a cross-claim, which was barred by the express 'no set-off' clause in the mortgage; additionally, the cross-claim was legally embarrassing and failed to properly plead causes of action. Defendants, after multiple opportunities, failed to remedy defects in their pleadings, so the Notice of Motion was dismissed.

Court Disposition

Notice of Motion dismissed

Orders

  • ["The Defendant's Notice of Motion of 5 August 2011 is dismissed"]