Secure Funding Pty Ltd v Linienko (No 3) [2023] NSWSC 1125

Secure Funding Pty Ltd v Linienko (No 3) [2023] NSWSC 1125

Because no appearance had been filed for the second defendant, the agreed conditions concerning sale of the property had not been complied with by the second defendant, and the plaintiff's evidence established the amount owing under the loan agreement and compliance with r 16.4 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff was entitled to default judgment for $334,550.06 and leave to issue a writ of possession to enforce the earlier possession judgment.

Jurisdiction
Australia
Judgment Date
15 September 2023
Procedural Posture
Possession of Land and Default Judgment for Amount Owing Under a Loan Facility Secured by Mortgage / Application for Default Judgment and Leave to Issue a Writ of Possession
Outcome
Judgment for the plaintiff against the second defendant; leave granted to issue a writ of possession; second defendant ordered to pay costs.
Legal Topics
['possession of Land' 'mortgage Enforcement' 'default Judgment' 'writ of Possession' 'loan Facility']
['land Law' 'civil Procedure'] ['possession of Land' 'mortgage Enforcement' 'default Judgment' 'writ of Possession' 'loan Facility']

Case Brief

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Procedural Posture

Possession of Land and Default Judgment for Amount Owing Under a Loan Facility Secured by Mortgage / Application for Default Judgment and Leave to Issue a Writ of Possession

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to default judgment against the second defendant for the amount owing under the loan facility secured by the mortgage.' 'Whether leave should be granted to issue a writ of possession to enforce the judgment entered on 18 April 2023.']

Ratio Decidendi

Because no appearance had been filed for the second defendant, the agreed conditions concerning sale of the property had not been complied with by the second defendant, and the plaintiff's evidence established the amount owing under the loan agreement and compliance with r 16.4 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff was entitled to default judgment for $334,550.06 and leave to issue a writ of possession to enforce the earlier possession judgment.

Court Disposition

Judgment for the plaintiff against the second defendant; leave granted to issue a writ of possession; second defendant ordered to pay costs.

Orders

  • ['Judgment for the plaintiff against the second defendant for $334,550.06.' 'Interest is payable on the judgment at the rate or rates applicable under the loan and mortgage.' 'Grant leave to issue a writ of possession to enforce the judgment entered on 18 April 2023.' 'The second defendant pay the plaintiffs costs.']