Suncorp-Metway Limited v Nagy [2008] NSWSC 20

Suncorp-Metway Limited v Nagy [2008] NSWSC 20

The defendant's defence, apart from the asserted ISSA issue, did not put the plaintiff's allegations in issue. The contention that ISSA was a State for s 118 purposes and could defeat the Court's jurisdiction was plainly unarguable as a matter of fact and law, and the ISSA documentation gave no support to the defence. The plaintiff therefore discharged the onus for summary relief and was entitled to possession of the land, costs, and referral of the writ of possession question to a Registrar.

Jurisdiction
Australia
Judgment Date
06 February 2008
Procedural Posture
Common Law Claim for Possession of Land Under a Registered Mortgage / Plaintiff's Notice of Motion for Striking Out of the Defence and Entry of Judgment, Presented as a Claim for Summary Relief
Outcome
Plaintiff granted possession; defendant ordered to pay costs; issue of writ of possession referred to a Registrar.
Legal Topics
['summary Judgment' 'claim for Possession' 'registered Mortgage Default' 'strike Out of Defence' 'independent Sovereign State of Australia' 'jurisdiction' 'section 118 of the Commonwealth Constitution']
['common Law' 'mortgage Law' 'civil Procedure' 'constitutional Law'] ['summary Judgment' 'claim for Possession' 'registered Mortgage Default' 'strike Out of Defence' 'independent Sovereign State of Australia' 'jurisdiction' 'section 118 of the Commonwealth Constitution']

Case Brief

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Procedural Posture

Common Law Claim for Possession of Land Under a Registered Mortgage / Plaintiff's Notice of Motion for Striking Out of the Defence and Entry of Judgment, Presented as a Claim for Summary Relief

Legal Issues

  1. 1 ["Whether the defendant's unverified defence should be struck out as defective and as disclosing no arguable issue." "Whether the alleged Independent Sovereign State of Australia is a State within the meaning of s 118 of the Commonwealth Constitution so as to affect the Court's jurisdiction to grant possession." 'Whether the plaintiff was entitled to summary relief and possession of the mortgaged land.' 'Whether a purported tender of a cheque from the Federal State Bank of ISSA was valid.']

Ratio Decidendi

The defendant's defence, apart from the asserted ISSA issue, did not put the plaintiff's allegations in issue. The contention that ISSA was a State for s 118 purposes and could defeat the Court's jurisdiction was plainly unarguable as a matter of fact and law, and the ISSA documentation gave no support to the defence. The plaintiff therefore discharged the onus for summary relief and was entitled to possession of the land, costs, and referral of the writ of possession question to a Registrar.

Court Disposition

Plaintiff granted possession; defendant ordered to pay costs; issue of writ of possession referred to a Registrar.

Orders

  • ['The plaintiff is to have possession of the land described in paragraph 2 of the Statement of Claim.' 'The defendant is to pay the costs of the proceedings.' 'The question of the issue of a writ of possession is referred to a Registrar.']