Westpac Banking Corporation v Mason [2011] NSWSC 1241

Westpac Banking Corporation v Mason [2011] NSWSC 1241

The defendants admitted the loan agreement, the mortgage, the advance of funds and default. There was no proper factual basis for pleading that the loan had been securitised, and in any event the alleged securitisation of equitable interests would not affect Westpac's legal rights under the registered mortgage and loan agreement. Because no notice of assignment had been given under section 12 of the Conveyancing Act 1919, the debt was enforceable only by Westpac. The amended defence disclosed no triable issue, and the plaintiff was entitled to summary judgment for possession and the debt.

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Mortgage Proceedings for Possession and Judgment in a Money Sum / Interlocutory Application for Summary Judgment
Outcome
Summary judgment for the plaintiff.
Legal Topics
['possession Proceedings' 'summary Judgment' 'registered Mortgage' 'indefeasibility' 'securitisation Defence' 'assignment of Debt' 'indemnity Costs']
['mortgage Law' 'civil Procedure' 'real Property' 'banking and Finance'] ['possession Proceedings' 'summary Judgment' 'registered Mortgage' 'indefeasibility' 'securitisation Defence' 'assignment of Debt' 'indemnity Costs']

Case Brief

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Procedural Posture

Mortgage Proceedings for Possession and Judgment in a Money Sum / Interlocutory Application for Summary Judgment

Legal Issues

  1. 1 ["Whether the defendants' amended defence alleging securitisation of the loan and mortgage disclosed any arguable defence to the plaintiff's claim for possession and judgment." 'Whether there was a proper factual basis for pleading that the loan had been securitised.' 'Whether the plaintiff could enforce the loan agreement and registered mortgage despite the alleged sale, assignment or disposal of equitable interests.' 'Whether the statement of claim failed to comply with rule 14.15 of the Uniform Civil Procedure Rules 2005.' "Whether the plaintiff's summary judgment evidence satisfied rule 13.1 of the Uniform Civil Procedure Rules 2005." 'Whether the plaintiff should receive indemnity costs under the loan agreement.']

Ratio Decidendi

The defendants admitted the loan agreement, the mortgage, the advance of funds and default. There was no proper factual basis for pleading that the loan had been securitised, and in any event the alleged securitisation of equitable interests would not affect Westpac's legal rights under the registered mortgage and loan agreement. Because no notice of assignment had been given under section 12 of the Conveyancing Act 1919, the debt was enforceable only by Westpac. The amended defence disclosed no triable issue, and the plaintiff was entitled to summary judgment for possession and the debt.

Court Disposition

Summary judgment for the plaintiff.

Orders

  • ['That the defendants give the plaintiff possession of all the land comprised in certificate of title folio identifier 2/SP48707 being the land situated at and known as 2/8 Bay St Angourie NSW 2464 (Property).' 'That the plaintiff have leave to issue a writ of possession in respect of the property.' 'Judgment for...