Supreme Court New South Wales Medium Neutral Citation: Big Sur Holdings Pty Limited t/as Big Sur Holdings v Poole [2020] NSWSC 1671 Hearing dates: 4, 12 November 2020 Date of orders: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Judgment for the plaintiff for possession of the land comprised in folio identifier 1/844789, being the land situated at and known as Lot 1 Eden Street Coonabarabran in the State of New South Wales 2357. (2) Judgment for the plaintiff in the sum $139,299.41. Catchwords: MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Possession CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence save as to amount claimed Cases Cited: Donaldson v State of New South Wales [2019] NSWCA 109 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Category: Principal judgment Parties: Big Sur Holdings Pty Limited trading as Big Sur Holdings (Plaintiff) Barbara Jean Poole (Defendant) Representation: Counsel: D Eardley (Plaintiff) Solicitors: Legal Minds (Plaintiff) Defendant (self-represented) File Number(s): 2020/235969 Publication restriction: Nil REVISED EX TEMPORE Judgment 1. This matter comes before me today by way of a motion filed by the plaintiff on 18 September 2020 seeking summary judgment. 2. The hearing of the motion was originally listed before me on 4 November 2020. 3. Mr Eardley of Counsel appears for the plaintiff. Ms Barbara Jean Poole, the defendant, appears in person. Mr Eardley appeared by way of AVL. Ms Poole appeared on both occasions over the phone. 4. As set out in the statement of claim, the plaintiff seeks possession of Ms Poole's property and an order for judgment in the amount said to be outstanding. In support of the application, the plaintiff relies on the affidavit of Anthony Warren Gardiner Coventry dated 13 August 2020 and the affidavit of Christopher Kimberly Charles Serow dated 8 October 2020. Annexed to these affidavits are the relevant mortgage, loan documentation and deeds of guarantee and indemnity as well as title searches. 5. In the circumstances of the limited nature of the dispute, it is not necessary that I say more about those documents other than that I am satisfied that they were validly entered into. 6. When the matter first came before me on 4 November, I sought clarification from Ms Poole as to the nature of her defence. She informed me that she accepts that the plaintiff would be entitled to possession but wishes to challenge the amount outstanding. 7. In those circumstances, I directed that the plaintiff provide a schedule in simple form to Ms Poole of all of the amounts that were said to be outstanding and how they were calculated. 8. In accordance with my direction, the plaintiff provided that schedule as well as invoices relating to the legal expenses said to have been incurred. 9. By the time the hearing resumed on 12 November 2020, Ms Poole had served an affidavit on which she relies, although it is not clear whether it is an affidavit or a defence. She says that she accepts that the plaintiff has a right to possession of Lot 1 DP844789 Eden Street Coonabarabran. 10. However, she maintains the following defences: 1. She says that there is an agreement that the plaintiff will accept that the value of the land is $100,000 and no more. 2. She says that part of the document which was served on her ("the Important Notice") was not actually on a signed page. She said it would be unconscionable to enforce a loan when the Important Notice was not on a signed page. 3. She does not accept the amount of the legal fees and says that they are excessive. She says that it would be unconscionable for the plaintiff to charge an amount of $600 for something that was done in error. This is a reference to an error in the affidavit of Mr Serow dated 8 October 2020, where there was a misdescription of the land. 4. She asks the Court to give her leave to "countersue" all parties involved for accusing her of mortgaging a property that she did not own. She says she has suffered loss and damage as a result of being wrongly accused of mortgaging a property that she did not own. 1. The principles that should be applied on an application for summary judgment are well known. [1] 2. It is necessary for the plaintiff to establish that the matters relied upon by the defendant as possible defences are so obviously untenable that they cannot possibly succeed. [2] 3. As set out in the statement of the claim, the plaintiff seeks three orders being: 1. Judgment for the plaintiff for possession of land comprised in folio identifier 1/844789, being the land situated at and known as Lot 1 Eden Street Coonabarabran in the State of New South Wales 2357. 2. Judgment for the plaintiff against the defendant for the sum of $55,000 plus interest and administration fees. 3. An order that the defendant pay the plaintiff's costs pursuant to clauses 12.2 and 12.3 of the loan contract and special term 8 of the loan contract. 1. Ms Poole does not dispute that the plaintiff is entitled to judgment for possession in accordance with the first order sought in the relief claimed. 2. She accepts that she entered into the loan and accepts there is a significant amount outstanding. She accepts that she has not repaid any amount other than a very small amount. 3. Ms Poole made submissions as to why the amount of the legal costs claimed should be reduced. She made submissions only as to the proposition that the legal costs were excessive. She said that the plaintiff should not be entitled to charge $600 for doing something incorrectly. The plaintiff accepts this. She said also that she thought that the hourly charges of the solicitor for the plaintiff were excessive, although she did not identify precisely why they were excessive. 4. In circumstances in which the plaintiff is entitled to possession and there remained a dispute as to the precise amount of the judgment, it seemed to me that one course may be to send the matter out for an urgent mediation to see if the parties could reach agreement on the amount outstanding. 5. However, on being informed of this possibility, the plaintiff chose an alternative course, which was to agree without any further argument to reduce the amount of legal fees by a further $5,000. 6. Having heard that, Ms Poole no longer wishes to dispute the amount owing by way of legal fees. 7. As such, subject to the other defences raised by Ms Poole, the plaintiff would be entitled to an order for possession and judgment for the amounts sought or agreed. 8. It is necessary, however, that I give proper consideration to Ms Poole's other defences. They are that: 1. the plaintiff should not be able to recover more than $100,000 on the sale of the property; and 2. Ms Poole should be given compensation for what the plaintiff did in misdescribing the property and, according to Ms Poole, therefore alleging that she had wrongfully mortgaged a property she did not own. 1. As I understand it, the effect of what Ms Poole wants to happen is that the plaintiff should not be able to recover more than $100,000 from the sale of the property. Ms Poole says that the plaintiff should not be permitted to sell the property during this current pandemic and that it would be reckless to attempt to do so. In response, Mr Eardley accepts that the plaintiff has obligations in respect of the proper process and selling for a fair market value but maintains that the plaintiff is entitled to sell the property in accordance with proper process in order to recover the amount outstanding. 2. As I indicated to Ms Poole, it is not the Court's function to give directions to the plaintiff as to how and when it should sell the property. She heard Mr Eardley accept that there are obligations imposed upon the plaintiff as the mortgagee in attempting to sell the property. As I informed Ms Poole, if she was unhappy with any process that might be adopted or undertaken in the future she could take what course she wished to take but it again was not the function of the Court to advise her as to what she might or should be doing depending on what the plaintiff did. 3. Ms Poole referred to two clauses, one in the loan contract which is part of the annexure to Mr Serow's affidavit dated 8 October 2020, on which the plaintiff relies. She specifically relies on clause 4 of the special terms and conditions attached to the loan contract, which says: "Loan value ratio ("LVR") of all and any combined loans and encumbrances in a relation to security property shall not exceed 60% unless otherwise approved by the Lender/Credit Provider/Mortgagee." 1. She says that this clause supports her position. She then referred to a term in a caveat, which is not actually in evidence, that appears to be in somewhat similar terms. 2. It is only necessary to say that I do not accept that these conditions support the defence that Ms Poole wants to raise. They do not relate to the issue she raises and do not have the effect that she maintains. 3. I asked Mr Eardley to make submissions about the clauses and he did so appropriately. It is not necessary for me to further expand upon the meaning of the clauses other than to say that on their face they impose a restriction on the amount that Ms Poole can borrow. That is, the loan value ratio should not exceed 60 per cent. They say nothing about the amount that the plaintiff can recover. That part of the defence which Ms Poole seeks to raise has no prospect of success. 4. The second argument raised by Ms Poole relates to her belief that she was wrongfully accused of mortgaging a property which she did not own. As she said, she lives in a town and she has been a teacher in the town and is well known in the community. 5. Ms Poole feels aggrieved that there might have been a suggestion that she wrongfully mortgaged a property which she did not own. However, as was identified by the solicitor for the plaintiff on the last occasion, that was simply a clerical error, which was admitted to and corrected. Rightly or wrongly, sometimes people do make errors. When they discover the errors, they correct them. There is no relevant basis at law on which Ms Poole could somehow seek compensation from the plaintiff because there was a misdescription of the property in the affidavit. As I said to Ms Poole, it is most unlikely that the plaintiff has circulated the affidavit to people in the town. The affidavit was served on her for the purposes of the action pursued by the plaintiff. With respect to Ms Poole, the concern about members of the town in which she lives thinking that she would wrongfully mortgage a property which she did not own might be misplaced. In any event, there is no legal relief available to her. 6. In the circumstances, the defences raised by Ms Poole have no prospects of success. The amount having been agreed and Ms Poole having accepted that the plaintiff is entitled to possession, the plaintiff is entitled to summary judgment and the orders that it seeks. Orders 1. I make the following orders: 1. Judgment for the plaintiff for possession of the land comprised in folio identifier 1/844789, being the land situated at and known as Lot 1 Eden Street Coonabarabran in the State of New South Wales 2357. 2. Judgment for the plaintiff in the sum $139,299.41. 1. The above amount includes the principal sum, the interest, the administrative costs and the legal costs. In the circumstances, there is no entitlement to the third order sought by plaintiff, which is specifically in respect of legal costs. ********** Endnotes 1. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69. 2. Donaldson v State of New South Wales [2019] NSWCA 109 at [3]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020