Permanent Custodians Ltd v Klear [2018] NSWSC 320

Permanent Custodians Ltd v Klear [2018] NSWSC 320

The defendants defaulted under the loan agreement and mortgage. Memorandum AH107429 was clearly incorporated into the mortgage, and clause 17.1(c) of the loan agreement together with clause 4.2(c)(i) of the Memorandum gave the plaintiff a clear right to seek possession on default. The incorrect date in the default notices did not invalidate them because the notices plainly related to the defendants' only loan account with the plaintiff. No arguable defence was shown, and the construction argument was manifestly groundless, so the plaintiff was entitled to possession.

Jurisdiction
Australia
Judgment Date
16 March 2018
Procedural Posture
Mortgage Possession Proceedings / Notice of Motion for Possession After Amended Defence Filed
Outcome
Judgment for the plaintiff for possession of the land; defendants to pay the plaintiff's costs of the notice of motion filed 12 March 2018.
Legal Topics
["mortgagee's Right to Possession" 'default Under Loan Agreement' 'validity of Default Notices' 'strike Out or Summary Judgment' 'construction of Mortgage Documents']
['land Law' 'mortgages' 'civil Procedure'] ["mortgagee's Right to Possession" 'default Under Loan Agreement' 'validity of Default Notices' 'strike Out or Summary Judgment' 'construction of Mortgage Documents']

Case Brief

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Procedural Posture

Mortgage Possession Proceedings / Notice of Motion for Possession After Amended Defence Filed

Legal Issues

  1. 1 ['Whether the mortgage and incorporated memorandum entitled the plaintiff mortgagee to possession of the land upon default by the defendants.' 'Whether the default notices were invalid because they referred to the credit contract date as on or about 26/09/2016.' "Whether the defendants' amended defence disclosed an arguable defence to the plaintiff's claim for possession." 'Whether clause 17.3 of the loan agreement impliedly excluded s 60 of the Real Property Act 1900 (NSW).']

Ratio Decidendi

The defendants defaulted under the loan agreement and mortgage. Memorandum AH107429 was clearly incorporated into the mortgage, and clause 17.1(c) of the loan agreement together with clause 4.2(c)(i) of the Memorandum gave the plaintiff a clear right to seek possession on default. The incorrect date in the default notices did not invalidate them because the notices plainly related to the defendants' only loan account with the plaintiff. No arguable defence was shown, and the construction argument was manifestly groundless, so the plaintiff was entitled to possession.

Court Disposition

Judgment for the plaintiff for possession of the land; defendants to pay the plaintiff's costs of the notice of motion filed 12 March 2018.

Orders

  • ['Judgment for the plaintiff for possession of the land comprised in certificate of title folio identifier 4/SP70758 being the land situated at and known as 4/7 Park Street, Merrylands, NSW 2160.' "The defendants are to pay the plaintiff's costs of the notice of motion filed 12 March 2018."]