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[2024] NSWSC 478

Hastings Capital Australia Pty Ltd v Lindenburg

1. Leave to the plaintiff to amend its statement of claim in the form annexed to the email from the plaintiff’s solicitors to my associate dated 12 April 2024. 2. The amended statement of claim is to be filed by 4:00pm on 1 May 2024. 3. The plaintiff is to pay any costs thrown away by reason of the amendment of the statement of claim. 4. The hearing date of 3 June 2024 is confirmed. 5. The parties have liberty to apply on 2 days’ notice.

Catchwords

CIVIL PROCEDURE – amendment – possession proceedings – where secured land subdivided – where amendment required to take account of the subdivision – where amendment opposed by defendant acting for himself – amendment allowed

Cases cited

  • Nil

Legislation cited

  • Contracts Review Act 1980 (NSW)

Judgment

  1. [1]

    These proceedings commenced on 7 February 2023 seeking possession of land at 242-244 Pitt Town Road, Kenthurst. The basis of the claim for possession is default under a loan agreement made to Linden Equipment Pty Ltd on 6 August 2021 of $2.3 million. The first defendant, Garry John Lindenburg, was a director, secretary and shareholder of Linden Equipment Pty Ltd. The loan was due for repayment on 18 August 2022. The second defendant was the first defendant’s wife, although they now appear to be separated. Both the first and second defendants, who are owners of the land, guaranteed the repayment of the loan and provided a mortgage over the land to secure the loan.

  2. [2]

    The defence filed by the defendants on 27 May 2023 pleads that the loan was varied by a “verbal agreement” whereby the plaintiff agreed to extend time for payment of the loan to around December 2022 and then to extend further the loan to enable the land to be subdivided. In that way, it is said that there has been no default. The defence also pleads a defence under the Contracts Review Act 1980 (NSW). Although this defence was filed by the defendants acting for themselves, it is pleaded in terms a lawyer would use, and the affidavits attesting to the truth of the defence were witnessed by a solicitor.

  3. [3]

    I have case managed the proceedings since 27 April 2023. Although the defence was filed on behalf of both defendants, the second defendant has never appeared in Court at any directions hearing. The first defendant has engaged a number of solicitors to act for him from time to time but the last of the solicitors ceased to act on 7 March 2024. Whilst those last solicitors acted, they indicated that the first defendant wished to amend his defence and they provided a copy of that proposed amended defence to the solicitors for the plaintiff.

  4. [4]

    On 23 February 2024 the solicitors for the plaintiff sent a request for particulars of the proposed amended defence to allow the plaintiff to consider whether it would consent to the filing of that proposed amended defence. Particulars were not supplied and the solicitors for the plaintiff refused consent to the first defendant to file the amended defence.

  5. [5]

    In orders made on 20 February 2024 I directed that if the plaintiff did not consent to the filing of the proposed defence, the defendants were to file a notice of motion seeking leave to do so, such motion to be filed by 5 March 2024 and returnable before me on 11 March 2024. No such notice of motion was filed. On 20 February 2024 I also set the matter down for hearing on 3 June 2024.

  6. [6]

    When the matter came before me on 11 March 2024 the first defendant appeared for himself and informed me that he did not need to amend his defence. He simply sought that a mediation occur, and said that he would then “file my defence that is already in court”. Accordingly, I confirmed the hearing date.

  7. [7]

    On 12 April 2024, whilst I was away on leave, the solicitors for the plaintiff wrote to my associate seeking to have the matter relisted so that the plaintiff could seek leave to file an amended statement of claim. The amendment was simply for the purpose of acknowledging that since the proceedings had commenced the land had been subdivided and possession was now sought of the land by reference to its new titles.

  8. [8]

    On my return from leave and in order to minimise costs, I directed my associate to write to the parties in these terms:

  9. [9]

    On 26 April 2024, the first defendant responded by saying:

  10. [10]

    No response was received from the second defendant.

  11. [11]

    The proposed amendment to the statement of claim by the plaintiff does not effect any substantive change to the claim being made. Whereas the land was under one title previously, it is now under two titles. The issue of whether the plaintiff is entitled to both those lots of land appears to be the issue raised in the original defence filed. No reason has been shown why the plaintiff should not be entitled to file the amended statement of claim.

  12. [12]

    The refusal of consent by the plaintiff to the filing of the amended defence arose because the defendants did not provide the particulars sought of that amended defence. The first defendant then had an opportunity to file a motion seeking leave to amend the defence. He did not do so. Further, as noted earlier, the first defendant indicated on 11 March that he did not want to amend his defence. The issue of the amendment of the defence is quite unrelated to the need to amend the statement of claim.

  13. [13]

    Accordingly, I make the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.