Perpetual Trustees Victoria Limited v Drakos [2021] NSWSC 1327

Perpetual Trustees Victoria Limited v Drakos [2021] NSWSC 1327

The applicants did not show any arguable defence to the 2008 possession claim. The contention that a commercial lender made a commercial loan without an entitlement to interest was unarguable and inconsistent with the loan application documents, standard documentation, statements of account, solicitor records, the borrowers' conduct in not defending the 2008 proceedings, and later payments and extension requests acknowledging arrears. Notice of default was properly given, any changes to interest rate fell within the loan terms, and the unexplained delay and prejudice to the plaintiff further weighed against setting aside the judgment. The proposed accounting cross-claim had no utility...

Jurisdiction
Australia
Judgment Date
21 October 2021
Procedural Posture
Common Law Proceedings Concerning Mortgage Default and Possession of Land / Interlocutory Hearing of Further Amended Notice of Motion Seeking Stay of Execution, Setting Aside of Default Judgment, Joinder, Representative Orders and Leave to File a Cross Claim
Outcome
Further Amended Notice of Motion dismissed; applicants ordered to pay the respondent plaintiff's costs; writ not to be enforced before 15 January 2022.
Legal Topics
['mortgage Default' 'default Judgment' 'application to Set Aside Judgment' 'writ of Possession' 'stay of Execution' 'proposed Defence' 'accounting Under Mortgage' 'hardship']
['civil Procedure' 'mortgage Law' 'property Law'] ['mortgage Default' 'default Judgment' 'application to Set Aside Judgment' 'writ of Possession' 'stay of Execution' 'proposed Defence' 'accounting Under Mortgage' 'hardship']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Proceedings Concerning Mortgage Default and Possession of Land / Interlocutory Hearing of Further Amended Notice of Motion Seeking Stay of Execution, Setting Aside of Default Judgment, Joinder, Representative Orders and Leave to File a Cross Claim

Legal Issues

  1. 1 ['Whether the default judgment for possession entered on 26 September 2008 should be set aside under r 36.16(2)(a).' 'Whether the proposed defence raised an arguable or triable defence, including whether the plaintiff was entitled to charge interest despite not producing the signed loan agreement.' 'Whether the applicants should have leave to file a cross-claim for an accounting under the mortgage.' 'Whether execution of the writ should be stayed on hardship grounds.']

Ratio Decidendi

The applicants did not show any arguable defence to the 2008 possession claim. The contention that a commercial lender made a commercial loan without an entitlement to interest was unarguable and inconsistent with the loan application documents, standard documentation, statements of account, solicitor records, the borrowers' conduct in not defending the 2008 proceedings, and later payments and extension requests acknowledging arrears. Notice of default was properly given, any changes to interest rate fell within the loan terms, and the unexplained delay and prejudice to the plaintiff further weighed against setting aside the judgment. The proposed accounting cross-claim had no utility...

Court Disposition

Further Amended Notice of Motion dismissed; applicants ordered to pay the respondent plaintiff's costs; writ not to be enforced before 15 January 2022.

Orders

  • ['Further Amended Notice of Motion dismissed.' "Applicants to pay the respondent plaintiff's costs." 'The Writ of Execution issued in this matter on 1 October 2008 not be enforced before 15 January 2022.']