Broadway Credit Union v Bellamy & Anor [2000] NSWSC 778

Procedural Posture

Mortgage Possession Proceedings; Application for Summary Judgment and Appointment of Trustees for Sale Under S 66 G Conveyancing Act 1919 (nsw) / Amended Notice of Motion Filed 29 May 2000

Legal Issues

1. 1 ['Whether summary judgment for possession should be entered against the second defendant under Part 13 r 2(1) of the Supreme Court Rules.' 'Whether the second defendant had arguable defences based on the Contracts Review Act 1980, unconscionability, Garcia/Yerkey principles, and construction of the mortgage.' 'Whether the plaintiff mortgagee was a co-owner entitled to seek appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW).' 'Whether the Court should exercise discretion to appoint trustees for sale where sale would deprive the second defendant of non-monetary remedies sought.']

Ratio Decidendi

Summary judgment was refused because the second defendant raised arguable defences under the Contracts Review Act 1980, unconscionability principles and construction of the mortgage, including as to later advances and the all moneys clause, so it could not be said there was no real question to be tried. The s 66G application was refused because the plaintiff, as mortgagee of the whole land, was not a co-owner within s 66F/s 66G; the Court would not exercise discretion to appoint trustees where sale would deprive the second defendant of remedies sought; and there was no utility in appointing another trustee because the second defendant already held the property on trust for the trustee in...

Court Disposition

The plaintiff's amended notice of motion was dismissed with costs.

Orders

• ["The plaintiff's amended notice of motion filed on 29 May 2000 is dismissed." "The plaintiff is to pay the second defendant's costs."]