Lesso Building Material Trading (Sydney) Pty Ltd v PDM Stone Pty Ltd

HIS HONOUR: By notice of motion filed on 21 August 2019, the plaintiff seeks orders, among others, pursuant to UCPR 12.7(2) that the second defendant’s defence be struck out for want of due despatch or alternatively pursuant to UCPR 14.28 upon the basis that it discloses no reasonable defence, has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of process.

By its statement of claim, the plaintiff sues the second defendant as the guarantor of all amounts owing to the plaintiff by the first defendant. Paragraph 5 of the statement of claim is as follows:

The second defendant by his defence filed on 28 March 2019 has admitted that he executed documents that in terms required him to guarantee the obligations of the first defendant but he has otherwise denied that he is indebted to the plaintiff. The defence gives little indication of the basis for the denials with the exception of paragraphs 4, 5 and 38, which are in the following terms:

The cross claim was summarily dismissed on 5 August 2019: see Lesso Building Material Trading (Sydney) Pty Ltd v PSM Stone Pty Ltd [2019] NSWSC 1008.

UCPR 15.1(1) provides as follows:

The defence of the second defendant consists of either bare denials that are unparticularised and unexplained or assertions of some unilateral variation or termination of credit facilities, whatever those references might mean. It is not clear from the terms of the second defendant’s defence that they have any meaning at all.

The plaintiff has quite properly conceded that the Court might in ordinary circumstances be disinclined to strike out a defence for want of particulars if the deficiency could possibly be corrected by an appropriately framed request from the plaintiff that they be supplied. However, in the particular circumstances of this case, the defence is entirely deficient and liable to be struck out forthwith. If the second defendant wished to assert that his prima facie liability arising from his execution of the guarantee had in some fashion been overtaken by events, including an agreement to vary the terms of the guarantee, or some other condition or event that rendered the guarantee unenforceable or void, as he generally asserts, it should have been made plain in the terms of the defence.

The defence in its present form discloses no reasonable defence beyond a plea of the general issue. It is embarrassing and clearly has a tendency to cause delay. It should be struck out.

I make the following orders: