Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Summary judgment should not have been entered because the applicant had a more than reasonably arguable basis to defend the proceedings. The pleadings, although ineptly drafted, sought to raise arguable challenges to the enforceability of the mortgage and to the respondent's conduct; the respondent's evidence did...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 July 2022
Procedural Posture
Application for Leave to Appeal From Summary Judgment for Possession of Land and Monetary Judgment Under a Mortgage / Court of Appeal; Leave to Appeal Granted and Orders Under Appeal Set Aside
Outcome
Leave to appeal granted; orders entered on 17 February and 1 March 2022 set aside; respondent's summary judgment motion dismissed; respondent ordered to pay costs.
Legal Topics
['leave to Appeal From Interlocutory Judgment' 'summary Judgment' 'summary Dismissal of Cross Claim' 'possession of Mortgaged Land' 'enforceability of Mortgage' 'unjust Contract' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'proof of Principal and Interest Under Mortgage']
['appeals' 'civil Procedure' 'mortgage and Securities' 'consumer Law' 'contract Law'] ['leave to Appeal From Interlocutory Judgment' 'summary Judgment' 'summary Dismissal of Cross Claim' 'possession of Mortgaged Land' 'enforceability of Mortgage' 'unjust Contract' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'proof of Principal and Interest Under Mortgage']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal From Summary Judgment for Possession of Land and Monetary Judgment Under a Mortgage / Court of Appeal; Leave to Appeal Granted and Orders Under Appeal Set Aside

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from an interlocutory summary judgment in the Common Law Division.' "Whether the applicant's defence raised triable issues as to the enforceability of the mortgage, including under the Contracts Review Act 1980 (NSW) and the Australian Consumer Law." 'Whether the respondent had established by sufficient evidence the principal sum advanced and outstanding under the mortgage.' 'Whether summary judgment could properly be entered for interest while a further contest about the proper calculation of interest remained for trial.' 'Whether inadequate pleadings should have led to summary judgment or to an opportunity to replead.']

Ratio Decidendi

Summary judgment should not have been entered because the applicant had a more than reasonably arguable basis to defend the proceedings. The pleadings, although ineptly drafted, sought to raise arguable challenges to the enforceability of the mortgage and to the respondent's conduct; the respondent's evidence did not establish beyond contest that those claims were without merit. The respondent also failed to demonstrate sufficiently the principal outstanding, and interest remained contestable. The applicant should not have been denied a trial.

Court Disposition

Leave to appeal granted; orders entered on 17 February and 1 March 2022 set aside; respondent's summary judgment motion dismissed; respondent ordered to pay costs.

Orders

  • ['Grant the applicant leave to appeal from the judgment and orders in the Common Law Division dated 17 and 18 February and 1 March 2022.' "Set aside the orders entered on 17 February and 1 March 2022 and in place thereof, dismiss the plaintiff's notice of motion dated 30 November 2021." "Order that the plaintiff pay...