Lending 001 Pty Ltd v Dimarti [2022] NSWSC 1136

Lending 001 Pty Ltd v Dimarti [2022] NSWSC 1136

The plaintiff was entitled to summary judgment for possession because the Principal Amount was advanced and not repaid on 8 December 2021, default under the mortgage was established, and the plaintiff sought possession only. The defendants' allegations concerned the amount owing or post-contract conduct and were not properly particularised or supported so as to impugn the mortgage, engage the Contracts Review Act 1980 (NSW), identify any breach of the National Credit Code, or otherwise disclose an arguable defence to possession. Any dispute about payout figures, interest, fees or charges could be dealt with in an accounting and did not prevent possession judgment.

Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Mortgage Possession Proceedings / Plaintiff's Notice of Motion for Summary Judgment, Alternatively Strike Out of Defences and Judgment
Outcome
Judgment for the plaintiff for possession of the land; defendants to pay the plaintiff's costs.
Legal Topics
["mortgagee's Right to Possession" 'summary Judgment' 'strike Out of Defences' 'contracts Review Act Relief' 'national Credit Code' 'pleading and Particulars']
['mortgages and Securities' 'civil Procedure'] ["mortgagee's Right to Possession" 'summary Judgment' 'strike Out of Defences' 'contracts Review Act Relief' 'national Credit Code' 'pleading and Particulars']

Case Brief

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Procedural Posture

Mortgage Possession Proceedings / Plaintiff's Notice of Motion for Summary Judgment, Alternatively Strike Out of Defences and Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment for possession of the mortgaged land.' "Whether the defendants' pleaded allegations of predatory practices, Contracts Review Act relief and breach of the National Credit Code disclosed a substantive defence." 'Whether the defences should be struck out if summary judgment were not granted.' 'Whether the dispute about the amount owing prevented judgment for possession where the plaintiff sought possession only.']

Ratio Decidendi

The plaintiff was entitled to summary judgment for possession because the Principal Amount was advanced and not repaid on 8 December 2021, default under the mortgage was established, and the plaintiff sought possession only. The defendants' allegations concerned the amount owing or post-contract conduct and were not properly particularised or supported so as to impugn the mortgage, engage the Contracts Review Act 1980 (NSW), identify any breach of the National Credit Code, or otherwise disclose an arguable defence to possession. Any dispute about payout figures, interest, fees or charges could be dealt with in an accounting and did not prevent possession judgment.

Court Disposition

Judgment for the plaintiff for possession of the land; defendants to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff for possession of the land comprised in folio identifier 120/10707 being the land situated at and known as 43 Monterey St, Monterey NSW 2217.' "The defendants are to pay the plaintiff's costs."]