Noble Solutions v Young [2013] NSWSC 1371

Noble Solutions v Young [2013] NSWSC 1371

The loan agreement, although poorly drafted and involving usurious interest rates, was on the evidence an enforceable short-term agreement that gave the plaintiff a charge or security interest over the Fletcher property. The first and second defendants defaulted, the first defendant produced no evidence supporting non est factum or forgery, and the second defendant was amenable to default judgment. The plaintiff was therefore entitled to the Court's assistance by way of judicial sale, with possession ordered only as an incident of that sale, but it was not entitled to recover costs wasted by the earlier defective application or costs of non-compliant affidavits.

Jurisdiction
Australia
Judgment Date
06 September 2013
Procedural Posture
Equity Division Proceeding Concerning Mortgagee Remedies and Judicial Sale / Application for Summary Judgment Against the First Defendant, Default Judgment Against the Second Defendant, Possession and Judicial Sale
Outcome
Order to be made for judicial sale; plaintiff to bring in short minutes of order; plaintiff not to recover specified wasted and non-compliant affidavit costs.
Legal Topics
['mortgages and Securities' 'remedies of Mortgagee' 'judicial Sale' 'summary Judgment' 'default Judgment' 'wasted Costs' 'affidavit Compliance With Ucpr']
['real Property' 'equity' 'civil Procedure' 'costs'] ['mortgages and Securities' 'remedies of Mortgagee' 'judicial Sale' 'summary Judgment' 'default Judgment' 'wasted Costs' 'affidavit Compliance With Ucpr']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning Mortgagee Remedies and Judicial Sale / Application for Summary Judgment Against the First Defendant, Default Judgment Against the Second Defendant, Possession and Judicial Sale

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to default judgment against the second defendant.' 'Whether the plaintiff was entitled to summary judgment against the first defendant despite a pleaded defence of non est factum and assertion of forgery.' 'Whether the loan agreement gave the plaintiff a charge or security interest over the land at Fletcher.' 'Whether the plaintiff was entitled to the assistance of equity by way of judicial sale and possession incidental to that sale.' 'Whether the plaintiff should recover costs of the earlier application and costs of affidavits that did not comply with the rules.']

Ratio Decidendi

The loan agreement, although poorly drafted and involving usurious interest rates, was on the evidence an enforceable short-term agreement that gave the plaintiff a charge or security interest over the Fletcher property. The first and second defendants defaulted, the first defendant produced no evidence supporting non est factum or forgery, and the second defendant was amenable to default judgment. The plaintiff was therefore entitled to the Court's assistance by way of judicial sale, with possession ordered only as an incident of that sale, but it was not entitled to recover costs wasted by the earlier defective application or costs of non-compliant affidavits.

Court Disposition

Order to be made for judicial sale; plaintiff to bring in short minutes of order; plaintiff not to recover specified wasted and non-compliant affidavit costs.

Orders

  • ['Summary judgment to be given against the first defendant and default judgment to be given against the second defendant in principle.' 'Order for judicial sale of the Fletcher property to be made.' 'Vacant possession to be ordered against the first and second defendants as an incident of the judicial sale.' 'The...