NAB v Morgan [2009] NSWSC 1012

In this case NAB sold the property and sued for a shortfall of $85,000. The borrower, who is a solicitor, raised a defence arguing equitable set off, misleading and deceptive representations, unconscionable conduct and breach of the plaintiff’s Banking Code of Conduct. The borrower repeatedly breached the court’s orders for the filing of evidence and the bank brought a motion to strike out the defence for want of prosecution. The borrower countered with a motion to transfer the matter to the district court in view of the small sum now owing (since the sale proceeds had been applied to the debt). The judge concluded:

I am firmly of the view that an application to transfer the matter to the District Court could not shelter the defendant from the consequences of her repeated and ongoing failure to prosecute her defence. It would be entirely inconsistent with the requirements of the Civil Procedure Act 2005, whose overriding purpose is to ensure the ‘the just, quick and cheap resolution of the real issues in the proceedings’ (s 57) and would not pay proper attention to the defendant’s failures, nor would it help to eliminate delay, or to achieve justice between these parties.

Accordingly he made a self executing order that if the borrower did not file her evidence within a prescribed period that the defence would automatically be struck out.

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