Prime Capital Securities Pty Ltd v Victor Bohdan Chiciak [2020] NSWSC 952

Supreme Court New South Wales

Medium Neutral Citation: Prime Capital Securities Pty Ltd v Victor Bohdan Chiciak [2020] NSWSC 952 Hearing dates: 22 July 2020 Date of orders: 22 July 2020 Decision date: 22 July 2020 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the Plaintiff against the Defendant for possession of land comprised in Torrens Title Folio Identifier 148/8683, being the land situated at and known as 27 Ostend Street, Lidcombe in the State of NSW pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW); (2) Leave is granted for the Plaintiff to issue and to execute a writ of possession; (3) The Defendant pay the Plaintiff's costs on an indemnity basis; (4) Leave is granted for the Defendant to approach the Common Law Duty Judge with a Motion for a stay of the writ of possession; (5) The parties are directed to negotiate through legal representatives as to the most appropriate way of dealing with the issue of the alleged sale and the most appropriate manner to realise the best value for the property; and (6) The proceedings otherwise be dismissed. Catchwords: LAND LAW – Mortgage to guarantee debt to third party – Loan Agreement – Guarantor – Default – Loan for benefit of guarantor – Mortgage seeking only possession – no money issue – set off or cross-claim foreshadowed and unconscionability pleaded as shield – summary judgment – set off or damage to be agitated at later time on reconciliation. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 National Consumer Credit Protection Act 2009 (Cth), Sch 1 (National Credit Code) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Nibar Investments Pty Ltd v Manikad Pty Ltd [2014] NSWSC 920 Category: Procedural and other rulings Parties: Prime Capital Securities Pty Ltd (Plaintiff) Victor Bohdan Chiciak (Defendant) Representation: Counsel: C. Bannan (Plaintiff) G. O'Shea (Defendant)