Charub Pty Ltd v Triandafyllou [2019] NSWSC 487

Charub Pty Ltd v Triandafyllou [2019] NSWSC 487

The plaintiff was entitled to summary judgment because the defendants disclosed no defence to the claim for possession. The first and second defendants had authorised the third defendant by powers of attorney to enter into the relevant loan and mortgage arrangements. The third defendant's proposed refinancing or sale did not show any present ability to redeem and did not provide a defence. A s 57(2)(b) notice was not a pre-condition to possession proceedings and, in any event, had been served. The absence of notice of assignment under s 12 of the Conveyancing Act 1919 (NSW) did not affect the plaintiff's rights because the registered transfer of mortgage perfected the assignment under ss...

Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Proceedings for Possession of Land Based on Default Under a Registered Mortgage / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 Uniform Civil Procedure Rules 2005 (nsw), Alternatively Strike Out of Defences Under R 14.28
Outcome
Summary judgment for the plaintiff for possession; defendants ordered to pay the plaintiff's costs.
Legal Topics
['possession of Land' 'summary Judgment' 'registered Mortgage' 'guarantors' 'equity of Redemption' 'assignment of Mortgage' 'notice of Assignment' 'real Property Act Notice']
['land Law' 'mortgage Law' 'civil Procedure'] ['possession of Land' 'summary Judgment' 'registered Mortgage' 'guarantors' 'equity of Redemption' 'assignment of Mortgage' 'notice of Assignment' 'real Property Act Notice']

Case Brief

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Procedural Posture

Proceedings for Possession of Land Based on Default Under a Registered Mortgage / Plaintiff's Notice of Motion for Summary Judgment Under R 13.1 Uniform Civil Procedure Rules 2005 (nsw), Alternatively Strike Out of Defences Under R 14.28

Legal Issues

  1. 1 ["Whether the defendants' defences disclosed any real question to be tried in answer to the plaintiff's claim for possession." 'Whether the first and second defendants had a defence based on lack of knowledge of, or personal execution of, the loan agreement and mortgage where the third defendant executed under powers of attorney.' "Whether the third defendant's proposed refinancing or sale of the property gave rise to a right to redeem sufficient to defeat summary judgment or justify an adjournment." 'Whether service or pleading of a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) was required before proceedings for possession could be brought.' 'Whether failure to give notice of the assignment under s 12 of the Conveyancing Act 1919 (NSW) invalidated or prevented enforcement of the transferred mortgage.']

Ratio Decidendi

The plaintiff was entitled to summary judgment because the defendants disclosed no defence to the claim for possession. The first and second defendants had authorised the third defendant by powers of attorney to enter into the relevant loan and mortgage arrangements. The third defendant's proposed refinancing or sale did not show any present ability to redeem and did not provide a defence. A s 57(2)(b) notice was not a pre-condition to possession proceedings and, in any event, had been served. The absence of notice of assignment under s 12 of the Conveyancing Act 1919 (NSW) did not affect the plaintiff's rights because the registered transfer of mortgage perfected the assignment under ss...

Court Disposition

Summary judgment for the plaintiff for possession; defendants ordered to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff for possession of the whole of the land in folio identifier 701/1231641 being the land situated at and known as 5A Clareville Avenue, San Souci;' "The defendants are to pay the plaintiff's costs of the proceedings."]