Hall v Foster [2013] NSWSC 620

Hall v Foster [2013] NSWSC 620

The pleaded matters concerning the earlier offer to repay the mortgage and the defendants' attempts to sell the property were legally irrelevant to the plaintiffs' right to possession, particularly given the earlier findings that the rescission and redemption attempts were not valid. The first defendant's apprehension about the plaintiffs' diligence in pursuing a sale, and his proposal that possession be postponed until completion of that sale, had no legal basis. The defence was therefore struck out in part and judgment for possession entered, with leave to issue a writ of possession delayed until 22 July 2013 to allow for the first defendant's circumstances.

Jurisdiction
Australia
Judgment Date
13 May 2013
Procedural Posture
Possession Proceedings Concerning Mortgaged Land / Notice of Motion Seeking Strike Out of Part of the Defence and Judgment for Possession
Outcome
Defence struck out in part and judgment for possession entered for the plaintiffs.
Legal Topics
['possession of Land' 'mortgage Default' 'striking Out Defence' 'judgment for Possession' 'writ of Possession']
['property Law' 'civil Procedure'] ['possession of Land' 'mortgage Default' 'striking Out Defence' 'judgment for Possession' 'writ of Possession']

Case Brief

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Procedural Posture

Possession Proceedings Concerning Mortgaged Land / Notice of Motion Seeking Strike Out of Part of the Defence and Judgment for Possession

Legal Issues

  1. 1 ["Whether parts of the defence were legally irrelevant to the plaintiffs' claim for possession and should be struck out." 'Whether the plaintiffs were entitled to judgment for possession of Lot 1 Araluen Avenue, Mount Kembla.' "Whether execution of a writ of possession should be delayed because of the first defendant's circumstances."]

Ratio Decidendi

The pleaded matters concerning the earlier offer to repay the mortgage and the defendants' attempts to sell the property were legally irrelevant to the plaintiffs' right to possession, particularly given the earlier findings that the rescission and redemption attempts were not valid. The first defendant's apprehension about the plaintiffs' diligence in pursuing a sale, and his proposal that possession be postponed until completion of that sale, had no legal basis. The defence was therefore struck out in part and judgment for possession entered, with leave to issue a writ of possession delayed until 22 July 2013 to allow for the first defendant's circumstances.

Court Disposition

Defence struck out in part and judgment for possession entered for the plaintiffs.

Orders

  • ['Pursuant to UCPR 14.28 subparagraphs 5(a) to 5(c) and 6(b) to (g) of the Defence filed 26 April 2013 be struck out.' 'Pursuant to UCPR 13.1 there be judgment for possession in favour of the plaintiffs for the land comprised in Folio Identifier 1/588781 being the land situated at and known as Lot 1 Araluen Avenue,...