Perpetual Trustees Victoria Limited v Babasa [2021] NSWSC 1062

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Limited v Babasa [2021] NSWSC 1062 Hearing dates: 24 August 2021 Date of orders: 24 August 2021 Decision date: 24 August 2021 Jurisdiction: Common Law Before: Lonergan J Decision: Orders set out in par 20 Catchwords: REAL PROPERTY – possession of land – Family Law Proceedings 10 years ago – Family Law Act Deed – signed transfer not registered – orders sought declaring the second defendant is entitled to be registered proprietor – application not contested – orders made Legislation Cited: Family Law Act 1975 (Cth) National Credit Code (Cth) Category: Procedural rulings Parties: Perpetual Trustees Victoria Limited (Plaintiff) Sheila Hinch Babasa (First Defendant) Ian Raymond Clissold (Second Defendant) Representation: Counsel: E Phelan (Second Defendant)

Solicitors: Thomson Geer Lawyers (Plaintiff) Raymond Perkes Lawyer (Second Defendant) File Number(s): 2020/30267 Publication restriction: Nil

Judgment 1. The second defendant, Ian Clissold (Mr Clissold), has today filed an Amended Notice of Motion seeking orders in the proceedings to allow him to be recognised as the owner of the subject property at Hebersham, and to pay out the remaining sum due under a mortgage to the plaintiff, Perpetual Trustees Victoria Limited (Perpetual). The orders are in similar terms to those sought in his Notice of Motion filed in June 2021. 2. These proceedings were commenced by Statement of Claim filed on 30 January 2020 seeking possession and judgment in the sum of $239,786 plus interest. The proceedings were filed against Ms Sheila Babasa (Ms Babasa), (the first defendant), because she was and is currently the sole registered proprietor of the property in question. The Statement of Claim alleged that there had been default in mortgage repayments. On 12 July 2019 a Notice of Default pursuant to s 88 of the National Credit Code (Cth) was served upon Ms Babasa via the premises address. She did not respond, and no Defence has been filed on her behalf. 3. Based on Affidavit evidence tendered, which is not contested, and which I have no reason not to accept, Mr Clissold was the occupier of the premises since March 2010 and has asserted an entitlement to be noted as the registered proprietor based on the Family Law Deed and Transfer executed in March 2011 after he and Ms Babasa divorced. 4. Mr Clissold wishes to pay out the mortgage, but has not been able to do so because Perpetual have apparently refused to provide him with a payout figure as he is not the registered proprietor, nor a named party to the initial mortgage. 5. Perpetual's solicitor, Ms Nagam, appeared today and indicated that she was instructed to neither oppose nor consent to the orders sought in the Amended Notice of Motion. 6. Having reviewed the affidavit material tendered, and assisted by the written submissions of counsel, Ms Phelan, I am of the view that the orders sought in the Amended Notice of Motion should be made. These are my reasons.