Statewide Secured Investments Ltd v Hawkins & Tarrant [2011] NSWSC 144

Statewide Secured Investments Ltd v Hawkins & Tarrant [2011] NSWSC 144

The amended notice of motion was dismissed because the judgment was made and entered on 14 May 2009 and was not irregularly entered; the stay affected enforcement only; the judgment covered both possession and the monetary relief in the statement of claim; and Ms Tarrant failed to show any arguable defence. There was no evidence that Statewide agreed to release her from the Bardo Road loan, made any representation founding an estoppel, accepted the Myola Road refinancing as full discharge of the Bardo Road obligations, or engaged in conduct supporting an equitable defence based on undue influence or unconscionability.

Jurisdiction
Australia
Judgment Date
09 March 2011
Procedural Posture
Notice of Motion to Set Aside or Stay Judgment and for Declarations as to Satisfaction of Judgment / Hearing of Amended Notice of Motion Filed on 7 February 2011
Outcome
Amended notice of motion dismissed with costs.
Legal Topics
['setting Aside Judgment Entered in Absence of a Party' 'irregularity in Entry of Judgment' 'stay of Judgment' 'possession of Mortgaged Property' 'estoppel by Representation' 'discharge of Loan Obligations' 'undue Influence and Unconscionable Conduct']
['civil Procedure' 'mortgage Enforcement' 'equity' 'contract'] ['setting Aside Judgment Entered in Absence of a Party' 'irregularity in Entry of Judgment' 'stay of Judgment' 'possession of Mortgaged Property' 'estoppel by Representation' 'discharge of Loan Obligations' 'undue Influence and Unconscionable Conduct']

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Procedural Posture

Notice of Motion to Set Aside or Stay Judgment and for Declarations as to Satisfaction of Judgment / Hearing of Amended Notice of Motion Filed on 7 February 2011

Legal Issues

  1. 1 ['Whether the judgment pronounced on 14 May 2009 and signed on 17 June 2009 was entered irregularly while a stay was in place.' 'Whether the judgment entered by Adams J was limited to possession of the Bardo Road property or included the monetary claim.' "Whether the judgment should be set aside because it was entered in Ms Tarrant's absence." 'Whether Statewide was estopped from maintaining and enforcing the judgment because of arrangements between Ms Tarrant and Mr Hawkins concerning their properties.' 'Whether Ms Tarrant had fully discharged her obligations to Statewide except for $25,000 by refinancing the Myola Road property.' 'Whether Ms Tarrant had any arguable defence based on undue influence, unconscionability, valuation issues or building work at the Bardo Road property.']

Ratio Decidendi

The amended notice of motion was dismissed because the judgment was made and entered on 14 May 2009 and was not irregularly entered; the stay affected enforcement only; the judgment covered both possession and the monetary relief in the statement of claim; and Ms Tarrant failed to show any arguable defence. There was no evidence that Statewide agreed to release her from the Bardo Road loan, made any representation founding an estoppel, accepted the Myola Road refinancing as full discharge of the Bardo Road obligations, or engaged in conduct supporting an equitable defence based on undue influence or unconscionability.

Court Disposition

Amended notice of motion dismissed with costs.

Orders

  • ['Amended notice of motion filed on 7 February 2011 is dismissed.' "The second defendant, Ms Tarrant, is to pay the plaintiff's, Statewide Secured Investments Ltd's, costs."]