Bridge Capital No 2 Pty Ltd v Triumph Commercial Pty Ltd

These proceedings commenced on 19 January 2021 seeking inter alia possession of a property in Wharf Crescent, Pyrmont (“the land”), on the basis that there has been default under a mortgage which secured two loan agreements made in 2018 and later consolidated in 2019. The mortgage was provided by the second defendant, Qing Shun Liu.

The fifth defendant in those proceedings, Richard Tian, has lodged a caveat on the land. His amended defence filed 8 September 2021 pleads that, although Qing Shun Liu is the registered proprietor of the land, the land is held on trust for the fifth defendant. That is said to have arisen because the fifth defendant paid the deposit, stamp duty, legal costs and all mortgage payments on the land. In an amended first cross-claim filed on 8 September 2021, the fifth defendant seeks declarations and orders in relation to his entitlement to the land.

There is an allegation in the proceedings of a Deed of Priority executed on 17 April 2019 whereby the eighth defendant, Habs No 1 Pty Limited, obtained priority over the fifth defendant’s interest in the land. In both his defence and cross-claim the fifth defendant alleges that the Deed of Priority is a forgery.

The fifth defendant formerly had solicitors acting for him, but they ceased to act on 9 March 2023.

The proceedings were listed for directions before me on 18 April 2023. On that day a Mr Nehmetallah, solicitor, appeared for the fifth defendant. He told me that his instructions were to report on the status of the matter and, if his retainer was continued, he would file a notice of appearance.

The matter was next before me on 16 June 2023. There was no appearance for the fifth defendant. I said that I would direct my associate to advise the fifth defendant that if he did not appear at the adjourned direction hearing on 22 August 2023 I would consider striking out his cross-claim. My associate duly sent an email to that effect to the fifth defendant on 16 June 2023.

On 22 August 2023 there was no appearance of the fifth defendant before Campbell J. Campbell J directed that the Registrar was to give notice of orders that his Honour made that day and of the Court’s intention to strike out his defence and cross-claim if he did not appear on the adjourned date of 13 October 2023.

That date was altered to today (18 October) and the fifth defendant was advised of that alteration by my associate. There was no appearance by the fifth defendant when the matter was called this morning. He was called outside the court.

Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

By r 9.1(3) of the UCPR, the rules apply to a cross-claim in the same way as they apply to a statement of claim. The fifth defendant has failed to appear since June 2023 and has been warned on two occasions that a failure to appear might result in his cross-claim being struck out. In those circumstances, I consider that there has been a failure by him to prosecute the cross-claim that he filed, and in those circumstances that cross-claim filed 8 September 2021 will be struck out.

The proceedings are to proceed to mediation in February 2024. If they are not then resolved, and the fifth defendant does not appear, I will give consideration to striking out his defence.