HSBC Bank Australia Limited v The Trustee of the Property of Rui Yu, a Bankrupt (No 2) [2024] NSWSC 301

HSBC Bank Australia Limited v The Trustee of the Property of Rui Yu, a Bankrupt (No 2) [2024] NSWSC 301

The second defendant had defaulted under the loan agreement and mortgage, the default was unremedied, the plaintiff was contractually entitled to possession and recovery of the debt, and the amended defence raised only matters concerning trustee-held funds, trustee remuneration and related complaints that did not answer the mortgagee's claim. Accordingly, the amended defence was struck out and judgment was entered for the plaintiff for possession and the outstanding amount.

Jurisdiction
Australia
Judgment Date
25 March 2024
Procedural Posture
Mortgagee Claim for Possession of Land and Judgment for Debt Following Default Under a Loan Agreement and Mortgage / Application Resulting in Strike Out of Amended Defence and Summary Judgment for the Plaintiff
Outcome
Amended defence struck out; judgment for the plaintiff for possession and debt; leave to issue writ of possession; interest and indemnity costs ordered.
Legal Topics
['possession of Land' 'mortgage Default' 'summary Judgment' 'strike Out of Defence' 'writ of Possession' 'bankruptcy Annulment' 'interest and Indemnity Costs']
['land Law' 'civil Procedure' 'bankruptcy'] ['possession of Land' 'mortgage Default' 'summary Judgment' 'strike Out of Defence' 'writ of Possession' 'bankruptcy Annulment' 'interest and Indemnity Costs']

Case Brief

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Procedural Posture

Mortgagee Claim for Possession of Land and Judgment for Debt Following Default Under a Loan Agreement and Mortgage / Application Resulting in Strike Out of Amended Defence and Summary Judgment for the Plaintiff

Legal Issues

  1. 1 ["Whether the amended defence disclosed any defence to the plaintiff mortgagee's claim for possession and judgment for the outstanding debt." "Whether complaints about funds held by the trustee in bankruptcy, trustee remuneration, or alleged collusion provided a defence to the plaintiff's claim." 'Whether default under the loan agreement and mortgage had occurred and remained unremedied, entitling the plaintiff to possession and judgment.']

Ratio Decidendi

The second defendant had defaulted under the loan agreement and mortgage, the default was unremedied, the plaintiff was contractually entitled to possession and recovery of the debt, and the amended defence raised only matters concerning trustee-held funds, trustee remuneration and related complaints that did not answer the mortgagee's claim. Accordingly, the amended defence was struck out and judgment was entered for the plaintiff for possession and the outstanding amount.

Court Disposition

Amended defence struck out; judgment for the plaintiff for possession and debt; leave to issue writ of possession; interest and indemnity costs ordered.

Orders

  • ['The amended defence filed 20 February 2024 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff, for possession of the whole of the land known as 43/42-48 Waverley Street, Bondi Junction,...