Ocvirk v Permanent Custodians Limited [2013] NSWSC 1021

Ocvirk v Permanent Custodians Limited [2013] NSWSC 1021

Paragraphs 21 to 23 did not raise an arguable defence to the subrogation claim and tended to cause prejudice because they left uncertain what the defence was and on what facts it depended. Paragraph 24(a) was inconsistent with admissions that $66,485.69 was paid to discharge an obligation owed by Mr and Mrs Ocvirk to NAB, though leave to replead was appropriate as to the balance. Paragraph 24(b) did not raise an arguable restitution defence because a self-induced mistake does not of itself defeat a restitution claim where payment was made as a result of mistake.

Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Civil Proceeding; Cross Claim / Notice of Motion to Strike Out Paragraphs of Defence to Cross Claim
Outcome
Permanent Custodians Limited's notice of motion to strike out paragraphs of the defence to the cross-claim was granted, with limited leave to replead paragraph 24(a).
Legal Topics
['strike Out of Pleadings' 'uniform Civil Procedure Rules 2005 (nsw) R 14.28' 'subrogation' 'registered Mortgage' 'indefeasibility' 'mistake and Restitution']
['practice and Procedure' 'property Law' 'restitution'] ['strike Out of Pleadings' 'uniform Civil Procedure Rules 2005 (nsw) R 14.28' 'subrogation' 'registered Mortgage' 'indefeasibility' 'mistake and Restitution']

Case Brief

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Procedural Posture

Civil Proceeding; Cross Claim / Notice of Motion to Strike Out Paragraphs of Defence to Cross Claim

Legal Issues

  1. 1 ["Whether paragraphs 21 to 23 of the defence to the cross-claim disclosed an arguable defence to Permanent Custodians Limited's alternative subrogation claim." 'Whether a discharged NAB mortgage and the system of indefeasibility under the Real Property Act 1900 (NSW) prevented Permanent Custodians Limited from relying on subrogation.' 'Whether paragraph 24(a) should be struck out because the non-admission that moneys were advanced for the benefit of Mr and Mrs Ocvirk was inconsistent with other pleaded admissions.' "Whether paragraph 24(b) disclosed an arguable defence to a restitution claim by alleging that Permanent Custodians Limited's mistake was self-induced."]

Ratio Decidendi

Paragraphs 21 to 23 did not raise an arguable defence to the subrogation claim and tended to cause prejudice because they left uncertain what the defence was and on what facts it depended. Paragraph 24(a) was inconsistent with admissions that $66,485.69 was paid to discharge an obligation owed by Mr and Mrs Ocvirk to NAB, though leave to replead was appropriate as to the balance. Paragraph 24(b) did not raise an arguable restitution defence because a self-induced mistake does not of itself defeat a restitution claim where payment was made as a result of mistake.

Court Disposition

Permanent Custodians Limited's notice of motion to strike out paragraphs of the defence to the cross-claim was granted, with limited leave to replead paragraph 24(a).

Orders

  • ['Paragraphs 21 to 24 of the defence to the cross claim filed on 1 January 2013 be struck out.' 'Leave to the first and second cross defendant to replead paragraph 24(a) of the cross claim filed on 1 January 2013.' "The first and second cross defendants pay Permanent Custodians Limited's costs of the motion."]