Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926

Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926

The Plaintiff, as registered mortgagee, is entitled to orders for possession of the secured properties following default by the Borrower and Defendants, as admissions and unchallenged documentary evidence establish the debt and enforceable security; the Defendants failed to substantiate any set off or Contracts Review Act defence capable of defeating possession; adjournment and reopening applications failed for lack of proper evidence; all related procedural and indemnity claims were dismissed.

Jurisdiction
Australia
Judgment Date
31 July 2024
Procedural Posture
Civil Possession Proceedings / Final Judgment After Trial and Post Trial Applications
Outcome
Judgment for the Plaintiff for possession; all applications and cross-claims dismissed; Defendants to pay Plaintiff's costs.
Legal Topics
['adjournment' 'reopening Proceedings' 'mortgage Possession' 'guarantees' 'set Off' 'contracts Review Act 1980 (nsw)' 'costs']
['civil Procedure' 'real Property' 'contracts'] ['adjournment' 'reopening Proceedings' 'mortgage Possession' 'guarantees' 'set Off' 'contracts Review Act 1980 (nsw)' 'costs']

Case Brief

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Procedural Posture

Civil Possession Proceedings / Final Judgment After Trial and Post Trial Applications

Legal Issues

  1. 1 ["Whether adjournment should be granted due to the First Defendant's illness" 'Whether the First Defendant should be permitted to reopen the case and amend her defence' 'Whether the Plaintiff is entitled to possession of the mortgaged properties' 'Whether Defendants entitled to set off' 'Whether Contracts Review Act 1980 (NSW) applies to render mortgage, guarantee or loan contracts unjust' 'Appropriate orders as to costs']

Ratio Decidendi

The Plaintiff, as registered mortgagee, is entitled to orders for possession of the secured properties following default by the Borrower and Defendants, as admissions and unchallenged documentary evidence establish the debt and enforceable security; the Defendants failed to substantiate any set off or Contracts Review Act defence capable of defeating possession; adjournment and reopening applications failed for lack of proper evidence; all related procedural and indemnity claims were dismissed.

Court Disposition

Judgment for the Plaintiff for possession; all applications and cross-claims dismissed; Defendants to pay Plaintiff's costs.

Orders

  • ["The First Defendant's Notice of Motion filed on 26 June 2024 be dismissed." 'Judgment for the Plaintiff for possession of the land described in folio identifier 2/865637 being the land situated at and known as 72-78 Parramatta Road, Croydon NSW 2132 and folio identifier Auto C consol 12585-132 being the land...