Davdent Pty Ltd v Attinger [2001] NSWSC 902

Davdent Pty Ltd v Attinger [2001] NSWSC 902

The plaintiff proved the defendant's registered ownership of the land, the loan and registered mortgage, a six month mortgage term, continuing default, service and compliance with the required statutory notices, and an absence of misconduct defeating relief. The defendant's proposed adjournment had no utility, the amended cross claim raised no new issue against the plaintiff, joinder of additional parties was not justified, and the defendant's arguments about valuation, tender, costs and non-service of an earlier statement of claim did not provide a defence. The plaintiff was therefore entitled to possession, the principal sum and assessed costs of recovery of possession.

Jurisdiction
Australia
Judgment Date
16 October 2001
Procedural Posture
Claim for Possession of Land / Hearing of Plaintiff's Claim, Defendant's Application for Adjournment, and Application for Leave to File an Amended Cross Claim
Outcome
Plaintiff entitled to possession, the principal sum of $238,000, and costs of recovery of possession; defendant's adjournment application refused; leave granted only to file an amended cross claim against the plaintiff; leave to join additional parties refused.
Legal Topics
['mortgagee Possession' 'default Under Registered Mortgage' 'statutory Notices' 'adjournment' 'cross Claim and Joinder' 'construction of Mortgage Terms' "mortgagee's Enforcement Costs"]
['property Law' 'mortgage Law' 'civil Procedure' 'contract Law'] ['mortgagee Possession' 'default Under Registered Mortgage' 'statutory Notices' 'adjournment' 'cross Claim and Joinder' 'construction of Mortgage Terms' "mortgagee's Enforcement Costs"]

Case Brief

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Procedural Posture

Claim for Possession of Land / Hearing of Plaintiff's Claim, Defendant's Application for Adjournment, and Application for Leave to File an Amended Cross Claim

Legal Issues

  1. 1 ['Whether the proceedings should be adjourned to enable transfer to the Federal Court.' 'Whether leave should be granted to file an amended cross claim and to join additional parties.' 'Whether the mortgage term was six months and whether the defendant was in default.' 'Whether the plaintiff served and complied with required notices under the Real Property Act 1900 and the Conveyancing Act.' 'Whether alleged non-disclosure or misconduct concerning a valuation disentitled the plaintiff to relief.' "Whether the defendant's tender to discharge the mortgage provided a defence to possession or costs." 'Whether non-service of an earlier statement of claim defeated the present proceedings.']

Ratio Decidendi

The plaintiff proved the defendant's registered ownership of the land, the loan and registered mortgage, a six month mortgage term, continuing default, service and compliance with the required statutory notices, and an absence of misconduct defeating relief. The defendant's proposed adjournment had no utility, the amended cross claim raised no new issue against the plaintiff, joinder of additional parties was not justified, and the defendant's arguments about valuation, tender, costs and non-service of an earlier statement of claim did not provide a defence. The plaintiff was therefore entitled to possession, the principal sum and assessed costs of recovery of possession.

Court Disposition

Plaintiff entitled to possession, the principal sum of $238,000, and costs of recovery of possession; defendant's adjournment application refused; leave granted only to file an amended cross claim against the plaintiff; leave to join additional parties refused.

Orders

  • ["The defendant's application for adjournment is refused." 'Leave granted to file in Court an amended cross claim as against the plaintiff.' "Refuse leave to join additional parties identified in the defendant's notice of motion." 'The plaintiff is entitled to possession.' 'The plaintiff is entitled to the sum of...