RHG Mortgage Corporation Limited v Saunders

The pleading framework

1. On 2 July 2015 by statement of claim, the plaintiff sought possession of property at XX, Branxton NSW ("the property").
2. On 11 October 2007, the defendant mortgaged to the plaintiff the property as security for the amount owing to the plaintiff under a loan agreement. It was a term of the loan agreement that the defendant would pay to the plaintiff the repayments set out in the loan agreement at the time specified. The defendant failed to repay the loan on the specified dates.
3. On 9 June 2015, the plaintiff served on the defendant notices pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) and s 88 of the National Credit Code ("default notice"). The National Credit Code is contained in Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).
4. The default notice required the defendant to pay an amount of $2,441.70 by 10 July 2015, made up of the following missed payments: $366.06 on 9 April 2015; $406.41 on 16 April 2015; 30 April 2015; 21 May 2015; and 28 May 2015, together with enforcement expenses of $450.
5. The defendant has not complied with the default notice and, as at 15 July 2015, the defendant was indebted to the plaintiff in the amount of $261,196.23, being the amount payable by the defendant to the plaintiff pursuant to the loan agreement.
6. The defendant has not filed a defence.
7. On 2 December 2015, default judgment was entered. On 2 February 2016, a writ of possession issued. The plaintiff has obtained possession and wishes to sell the property. As this judgment is reserved and no stay of execution of the writ of possession has been applied for, I made an order that the plaintiff's solicitors are to give the defendant's solicitor 14 days' notice once they decide to market the property.

The law

1. The plaintiff relied upon Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 36.15 and 36.16. I shall deal with UCPR 36.15 first and then UCPR 36.16 if necessary. Counsel for Mr Saunders submitted that RHG did not comply with s 72 of the National Credit Code and judgment should be set aside pursuant to UCPR 36.15 because it was entered illegally.
2. UCPR 36.15 reads: "36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent."
3. The meaning of this rule was considered by this Court in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190. The Court (Allsop P, Campbell JA and Handley AJA) said in its joint judgment: "16. The focus of r 36.15(1) is on the judgment or order which is attacked, and the question is whether it was "given … entered, or … made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision or the irregularity of other steps in the proceedings, or in the proceedings below. 17. The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties are represented and fully heard."
4. It is necessary to look at the whole of the relevant circumstances: see Webster v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [120].

The National Credit Code

1. Mr Saunders' argument involves ss 72, 89A and 204 of the National Credit Code. Section 72 relevantly reads: "72 Changes on grounds of hardship Hardship notice (1) If a debtor considers that he or she is or will be unable to meet his or her obligations under a credit contract, the debtor may give the credit provider notice (a hardship notice), orally or in writing, of the debtor's inability to meet the obligations. Note: If the debtor gives the credit provider a hardship notice, there may be requirements (beyond those in section 88) that the credit provider must comply with before beginning enforcement proceedings - see section 89A. Further information (2) Within 21 days after the day of receiving the debtor's hardship notice, the credit provider may give the debtor notice, orally or in writing, requiring the debtor to give the credit provider specified information within 21 days of the date of the notice stated in the notice. The information specified must be relevant to deciding: (a) whether the debtor is or will be unable to meet the debtor's obligations under the contract; or (b) how to change the contract if the debtor is or will be unable to meet those obligations. …"
2. Section 89A relevantly reads: 89A Effect of hardship notices on enforcement (1) This section applies if: (a) a credit provider is required to give a default notice under section 88 before beginning enforcement proceedings; and (b) before or after the credit provider gives the default notice, the debtor gives the credit provider a hardship notice (the current hardship notice) under section 72; and (c) either: (i) in the 4 months before the day the current hardship notice is given, the debtor had not given the credit provider another hardship notice; or (ii) in that 4‑month period, the debtor had given the credit provider one or more other hardship notices, but the credit provider reasonably believes that the basis on which the current hardship notice was given is materially different from the bases on which the other hardship notices were given. (2) The credit provider must not begin enforcement proceedings against the debtor unless: (a) the credit provider has given the debtor a notice under paragraph 72(4)(b), in response to the current hardship notice, stating that the credit provider and debtor have not agreed to change the credit contract; and (b) the period of 14 days, starting on the day the credit provider gives the notice under paragraph 72(4)(b), has expired. Criminal penalty: 50 penalty units. Note: The credit provider must allow the debtor at least 30 days from the date of the default notice to remedy the default - see section 88. The 14‑day period in subsection (2) may end before, at the same time as, or after the end of the period for remedying the default specified in the default notice. … (4) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.
3. Pursuant to s 204, "enforcement proceedings" relevantly means: "(a) … (b) for a consumer lease or mortgage‑taking possession of property under the lease or mortgage; or (c) for a mortgage‑taking any other action to enforce the mortgage."

The evidence

1. Counsel for Mr Saunders submitted that on or around 19 May 2015, Mr Saunders made an oral hardship application to which RHG did not respond. I shall set out both parties' versions of that conversation. They are in similar terms. I shall refer to this conversation as the "conversation of 18 May 2015".

Mr Saunders' version

1. Mr Saunders deposes that on or around 19 May 2015, a person from RHG came to his house to discuss the loan. He does not recall the exact words spoken, however the conversation was to the following effect: "Mr Saunders: I'm having trouble making the repayments. My hours at work have been cut because of the rain and I am only a casual employee. My wife is also in the hospital. RHG agent: You need to pay the outstanding amount. Mr Saunders: I can't afford the full repayments unless I get more hours at work. RHG agent: How much can you afford? Mr Saunders: I can only do about $100 a week. At the moment I don't have the cash flow to pay more." (Aff Saunders, 22/6/2016, [23]).

RHG's version

1. This conversation is recorded in a log of RHG. It reads: "On the 18/05/15 at 3:08pm our agent attended XX, Branxton NSW … a single storey weatherboard home in good condition. There, our agent spoke to The Debtor personally. He advised [he] is aware of the outstanding debt and the reason for non payment is due to lack of work. Demand was made for the outstanding amount however, could not be met at this time. He advised his wife is currently in hospital and he is only working casually for Goldsprings Earthmoving, Rutherford therefore can only offer to pay [an] extra $100 a week due to low cash flow. He confirmed his contact number to be XX and stated he can be contacted on this number should the client require further information." (Aff Hooper, 46).
2. Counsel for Mr Saunders alleged it is clear that during this conversation Mr Saunders made an oral hardship application and RHG did not respond, therefore it did not comply with s 72 of the Credit Code. However, on either version of the conversation, Mr Saunders did not mention the word "hardship", nor did he mention a "hardship application". It is common ground that Mr Saunders did mention $100 a week. While both parties' versions of the conversation are not dissimilar, Mr Saunders' version is that he said, "I can only do about $100 a week" and RHG's version is that he said, "I can only offer to pay [an] extra $100 a week". The conversation ended when Mr Saunders gave his contact phone number and stated that he could be contacted on that number should RHG require further information.
3. Counsel for RHG referred to a practice that had arisen between Mr Saunders and RHG over a number of years in relation to hardship applications. The practice involved Mr Saunders phoning RHG and requesting a written hardship application from RHG, RHG posting one to him, Mr Saunders completing the application and posting it back to RHG and then RHG making a decision and notifying him of it. I was taken through RHG's log by counsel for RHG. It showed that this procedure was followed on 28 June 2011 to 20 September 2011; 27 July 2012 to 27 August 2012; 8 February 2013; 2 May 2013 to 28 May 2015; and 19 June 2013 to 1 August 2013. This procedure was also followed on 3 October 2013, although Mr Saunders did not return the application forms to RHG. Thus there were at least five financial hardship applications made by Mr Saunders in which this procedure was followed. Some of the applications were granted and some were not.
4. I accept that Mr Saunders was well aware of the procedure he was required to follow if he wanted to make a hardship application as he had previously done so on numerous occasions. Counsel for Mr Saunders drew my attention to the fact that the last written application was made in August 2013, which was some years ago. So far as the conversation of 18 May 2015 is concerned, counsel for RHG submitted that while the defendant may have subjectively considered that he made a hardship application, whether or not he did so is to be determined on an objective basis. The question is what a reasonable person would understand the conversation to mean taking into account the surrounding facts and circumstances.
5. In the past Mr Saunders made hardship applications in writing. Section 72(1) of the National Credit Code also allows for an oral application to be made. I accept that the contents of an oral conversation could constitute a hardship application. However, in my view the conversation between Mr Saunders and the RHG agent of 18 May 2015 did not amount to a hardship application because there was no mention of "hardship" or a "hardship application" by Mr Saunders. Also the conversation concluded with Mr Saunders providing his contact phone number and stating that he could be contacted should RHG require further information. He did not, for example, ask that he be informed of the outcome of his hardship application. Even if the conversation that took place on 18 May 2015 could be construed as Mr Saunders making a hardship application, there was a later conversation between Mr Ross Papantonio, senior arrears officer for RHG, and Mr Saunders on 31 July 2015, albeit outside of the 21 day period stipulated in s 72(2). That conversation was as follows: "Mr Papantonio: You've been transferred through to me because you've only offered $100 a week. Mr Saunders: Oh have I, ok. Righto. Mr Papantonio: Sorry that's it, yeah? Mr Saunders: Yes mate, yeah that's all I can offer. Mr Papantonio: Pay what you can. Obviously we can't accept that as an arrangement. You will be served with a Statement of Claim. Mr Saunders: I've already got it. Mr Papantonio: Ok. Then you've got 28 days to bring the loan up to date. Mr Saunders: Alright, ok. Mr Papantonio: Alright, once that takes place, if the loan is still in arrears we lodge a judgment with the court and then the eviction date gets set. So that's just, $100 a week is not acceptable. Mr Saunders: Look I'm trying to pay an extra $100 a week. Mr Papantonio: You have been served with a Statement of Claim for the full loan debt ok, so pay what you can, I've told you how it is. Mr Saunders: So what is it, what is it? I've got to pay out a house loan. Mr Papantonio: You have 28 days to bring the loan up to date or we enforce the statement of claim." (Aff Hooper [7]).
6. This conversation establishes that Mr Saunders was told that his "offer" of $100 per week was rejected and this is in accordance with s 72 of the National Credit Code.

Consideration of Monas

1. Counsel for the plaintiff referred to Monas v Perpetual Trustees [2011] NSWCA 417; 80 NSWLR 739 ("Monas") in submissions. Before I refer to Monas, it is convenient that I briefly refer to the National Credit Code and its predecessor in New South Wales, the Consumer Credit (New South Wales) Code ("NSW Credit Code").
2. The National Credit Code came into force on 1 April 2010 and applies to contracts entered into on or after 1 July 2010. Transitional provisions were dealt with by the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth). Section 4 contains a dictionary in which the term "carried over instrument" was defined as "a contract or other instrument that: (a) was made before commencement; and (b) was in force immediately before commencement; and (c) the old Credit Code of a referring State or a Territory applied to immediately before commencement."
3. Sections 80 of the NSW Credit Code and 88 of the National Credit Code are in almost identical terms. Both provide for criminal sanctions. Likewise, s 72 of the National Credit Code also provides for a criminal sanction.
4. Turning to the facts of Monas, Ms Monas sought to file an amended cross claim and a second further amended defence relying on the hardship provisions of the National Credit Code. She also asked to have determined separately the issue raised by the hardship application and the issue of compliance by the respondent with the requirements of s 80(3) the NSW Credit Code. More or less as a defensive measure, the respondent filed a notice of motion for authorisation to begin the current proceedings nunc pro tunc in case the Court should find that there was a defect in its s 80 notice.
5. In his Honour's reasons for decision, Young JA (with whom Beazley JA and McColl JA agreed) stated (at 749) that the Court did not need to consider the s 72 hardship application as the amount of credit extended to Ms Monas exceeded the threshold amount of $500,000 to which s 72 applied. Unlike Monas, in these current proceedings before me counsel for the plaintiff conceded that the hardship provisions apply. The amount of credit extended to Mr Saunders was about $265,000, which is under the threshold amount.
6. So far as s 80 of the NSW Credit Code is concerned, the Court of Appeal in Monas stated at [33] to [37]: "33 In Bank of Queensland Ltd v Dutta, Davies J had to consider the argument that a s 80 notice which did not mention subsequent defaults was or was not valid. His Honour was presented with argument that the case was covered by Graham v Aluma Lite but ruled that the differences between the Code and the 1984 Act had the result that the decision in Graham does not dictate the outcome of a failure to serve a notice under s 80 of the Code. 34 His Honour said that proceedings in disregard of s 80 could not be regarded as a nullity, he referred to Berowra Holdings Pty Ltd v Gordon to support that proposition. Next he said that s 80(4)(c) could authorise the credit provider to begin enforcement proceedings. Thirdly, s 170 of the Code provided that "a credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect." His Honour ruled at [146]: All that s 80 does is to provide a penalty for commencing the proceedings without serving a notice. It contains no express provision that the credit contract or mortgage is unenforceable. 35 He ruled that the present proceedings before him were not a nullity, nor does s 80 require that they be dismissed. 36 In Silberman v Citigroup Pty Ltd, Whelan J considered a similar argument on corresponding legislation in Victoria. At [40]-[45] Whelan J decided that he should follow the decision of Davies J in Dutta. There is some criticism as to this decision because at [38] Whelan J seems to have thought that the Queensland Court of Appeal in Shakespeare Haney Securities Ltd v Crawford had come to a similar conclusion. However, a closer reading of the Queensland decision shows that the paragraph relied on was merely a statement of counsel's contention in that case rather than a decision of the Court of Appeal. 37 In the present case Hoeben J followed Dutta. Despite Mr Sheahan's strong submissions, I have reached the view that the result in Dutta is correct for the reasons given by Davies J. Thus non compliance with s 80 does not mean that there is a failure of a condition precedent to the present litigation and that therefore the present litigation must be dismissed." (Citations omitted).
7. On the s 80 issue, the Court of Appeal stated at [44]: "44 It is accordingly unnecessary to consider whether a notice that does not comply with s 80 is invalid. Section 80 provides a criminal sanction. Section 114 allows the court to order the credit provider to make restitution. Hoeben J said that these consequences strongly tend against an interpretation which would impose further consequences for breach for which no specific provision has been expressly made. I agree with this view. In Dutta, Davies J came to the same conclusion. In my view, were it necessary to consider the matter fully, I would uphold the decision in [82] of Hoeben J's judgment that proceedings commenced in breach of s 80 involve at worst an irregularity."
8. Thus non compliance with s 80 of the NSW Credit Code does not mean that there is a failure of a condition to the present litigation and therefore the present litigation must be dismissed. However, the Court of Appeal in Monas found it unnecessary to consider whether a notice that does not comply with s 80 is invalid.
9. Section 72 of the National Credit Code also provides a penalty for non compliance. In Bank of Queensland Ltd v Dutta [2010] NSWSC 574, Davies J referred to s 170 of the NSW Credit Code which is identical to s 193(1) of the National Credit Code.
10. Section 193(1) of the National Credit Code reads: 193 Effect of noncompliance (1) A credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect."
11. If a hardship application was made on 18 May 2015 (and I have made a finding there was not), I would follow the approach of Davies J in Dutta and Hoeben J at first instance in Monas and find that any breach of s 72 involved at worst an irregularity.
12. Finally, if I am wrong and Mr Saunders did make a hardship application, I consider that it was refused by RHG, albeit out of time.
13. As I stated earlier, in my view there was no hardship application made by Mr Saunders so there was no irregularity. UCPR 36.15 does not apply.

Setting aside default judgment

1. I now turn to consider UCPR 36.16
2. The power to set aside a judgment is contained in UCPR 36.16. It reads: "36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court) or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. …"
3. The most recent Court of Appeal authority in which an application to set aside default judgment pursuant to UCPR 36.16 was considered is Stankovic v Magee [2014] NSWCA 439 ("Stankovic"). In Stankovic, Macfarlan JA (with Basten and Gleeson JJA agreeing) stated: "[18] In reaching this conclusion, the Judicial Registrar stated that there needed to be 'some demonstration by the defendant by clear evidence that [he has] a good defence on the merits'. This put the bar too high. As Sackville AJA (with the agreement of Barrett and Leeming JJA) said in Dai v Zhu [2013] NSWCA 412 at [89], 'a defendant who seeks to set aside a judgment by default regularly obtained must show that he or she has a bona fide defence'. His Honour at [92] continued: '[92] In determining whether the defendant has a bona fide defence on the merits, the court does not embark on a hearing of the full merits of the case: Adams v Kennick Trading, at 507; CBA v Humphreys, at [3]. All that is necessary is for the defendant to show that the defence is asserted bona fide and that there is an arguable or triable issue. The nature of the evidence required in a particular case may depend on the circumstances, including the cogency of the defendant's explanation for the delay or failure to comply with the orders of the court Adams v Kennick Trading, at 506; Nash v Swinburne. [93] The application of these principles must now be subject to the provisions of the [Civil Procedure Act 2005 (NSW)]. If, for example, the circumstances of a particular case are such that it would be contrary to 'the just determination of the proceedings' (s 57(1)(a)) to require a defendant to adduce affidavit evidence demonstrating a bona fide defence, the Court would be unlikely to reject the defendant's application to set aside a default judgment solely on the ground that no such affidavit had been filed. Each case must of course depend on its own facts. But it is fair to say that the principles articulated in the cases decided before the enactment of the [Civil Procedure] Act are consistent with the criteria laid down in the legislation.'"
4. Another consideration to be taken into account when determining whether default judgment should be set aside was expressed by Priestley JA in Cohen v McWilliam (1995) 128 FLR 263; (1995) 38 NSWLR 476 at 481 quoting from the Federal Court in Davies v Pagett (1986) 10 FCR 226; 70 ALR 793 at 799: "It is, however, another question whether concern about the extent of delays, either in a particular case or generally, should, in the absence of prejudice in the particular case, be taken into account in exercising a discretion to set aside a default judgment. The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case, of the party upon whom the limitation is sought to be imposed. The temptation to impose a limitation through motives of professional discipline or general deterrence is readily understandable; but, in our opinion it is an erroneous exercise of the relevant discretion to yield to that temptation. …"

Bona fide defence?

1. Mr Saunders' draft defence (Ex A) pleads essentially the same argument as that raised under UCPR 36.15, so I need not repeat my reasoning here other than to say that while I regarded the defence as bona fide in considering it pursuant to UCPR 36.15, in my view it does not raise an arguable or triable issue. Therefore, as I have considered it on its merits, I cannot conclude it is bona fide for the purposes of UCPR 36.16.

Explanation for delay

1. Mr Saunders was served with the statement of claim on 28 July 2015. His counsel submitted that as he did not understand what this document meant, he should have been warned by RHG that it was entering default judgment against him. Counsel referred to Emibarb Pty Limited v Commonwealth Bank (NSWSC, 2 March 1992 unreported, Greenwood M) and Stormer Building Group Pty Ltd v Johnson [2014] ACTSC 23 ("Stormer Building Group"). In Stormer Building Group, Mossop M at [12] stated: "12 In Ezekiel-Hart v Law Society [2012] ACTSC 103, Refshauge J added that separate consideration will in some cases be given to the notice of an intention to apply for judgment. He referred in that case to the judgment of Wallace J in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551 where his Honour said: 'I think that where the party signing judgment does so without giving warning of its intention to do so, such party will generally, though perhaps not invariably, be in difficulties on a summons to set aside the judgment where a defence on the merits is disclosed.'"
2. However, RHG's log shows that on 2 November 2015, Mr Saunders was sent the following SMS via email: "RHG will enter judgment against yourself without immediate payment of arrears $1,192.38, fees $4,529.71."
3. On 19 November 2015, Mr Saunders was sent another SMS via email: "RHG is proceeding with a Judgement (sic) against yourself and [the property]. You will be liable for additional charges. Arrears $2,384.76, fees $4,599.71".
4. On 24 November 2015, Mr Saunders was sent another SMS via email: "Due to ongoing arrears RHG must proceed with a Judgement (sic) application for [the property]. Arrears $2,384.76, fees $4,750.21".
5. On 26 November 2015, Mr Saunders was again sent a further SMS via email: "Your RHG HL is $1,982.22 behind and RHG is proceeding with the Judgment application".
6. On 30 November 2015, Mr Saunders was sent yet another SMS via email: "An application for Judgment against yourself has been submitted in the Supreme Court. Arrears $1,982.22, fees $4,785.21".
7. It is clear that Mr Saunders was advised on a number of occasions that RHG was intending to enter default judgment against him prior to RHG doing so.
8. It was only once Mr Saunders was evicted from his property on 22 March 2016 that he sought legal advice and a notice of motion seeking to set aside the default judgment was filed. In my view, Mr Saunders had been warned on a number of occasions that judgment was going to be entered against him and that an application for judgment had been submitted in this Court. He elected to ignore the notices given. It is my view that Mr Saunders has not given an adequate explanation for his delay.

Interests of justice

1. As at 1 June 2016, Mr Saunders owed $282,135.16 pursuant to the loan. When the statement of claim was issued, the default in repayments was for a modest amount of $2,441.70, including enforcement expenses of $450. Subsequently Mr Saunders has not made or offered to make any mortgage repayments. I understand that his main problem with making regular mortgage repayments is that he is casually employed as an earthmover in Rutherford so he is not able to work when it rains. Therefore the amount of his income each week is irregular. He has been struggling to pay the mortgage over a number of years. Mr Saunders did not provide any evidence to show that he will be able to make the mortgage repayments in the future.
2. Counsel for the plaintiff submitted that it is not in the interests of justice to set the default judgment aside as there is little or no equity in the property. The property has been valued on two bases. Firstly, on a direct comparison approach, comparing the property's value to recent sales of properties of similar value, the total market value of the property as is, is calculated at $265,000. Secondly, after clean up, it is valued at $300,000. The market value range is estimated at between $250,000 to $280,000 as is or between $290,000 to $320,000 as if complete (Aff Hooper, 31).

Conclusion

1. It is my view that Mr Saunders' defence, while bona fide, does not raise an arguable or triable issue. He has not provided an adequate explanation for delay. While I accept that the default as at 21 July 2015 (when the statement of claim was issued) was for a modest amount, there is little or no equity left in the property. Mr Saunders has struggled to pay the mortgage repayments since 2011 due to the nature of his casual work and there is no evidence to show that he will be able to properly service the loan in the future. Overall, it is not in the interests of justice to set the default judgment aside. For these reasons, the default judgment should not be set aside.
2. The result is that the defendant's notice of motion filed 19 May 2016 is dismissed.
3. Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed.

The Court orders that: (1) The defendant's notice of motion filed 19 May 2016 is dismissed. (2) The defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed.

Amendments 06 July 2016 - Amendment to Counsel's initial on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2016