Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 Hearing dates: 24 June 2022 Date of orders: 5 July 2022 Decision date: 05 July 2022 Before: Ward P at [1]; Simpson AJA at [2]; Basten AJA at [3] Decision: (1) Grant the applicant leave to appeal from the judgment and orders in the Common Law Division dated 17 and 18 February and 1 March 2022. (2) Set aside the orders entered on 17 February and 1 March 2022 and in place thereof, make the following orders: (a) dismiss the plaintiff's notice of motion dated 30 November 2021; (b) order that the plaintiff pay the defendant's costs of the motion. (3) Order that the respondent pay the applicant's costs in this Court, including his costs of the stay application in the Division. Catchwords: APPEALS – leave to appeal – claim for summary judgment for possession of land – whether the defence raised triable issues as to (i) enforceability of mortgage and (ii) rate of interest accruing under mortgage CIVIL PROCEDURE – summary disposal – judgment for plaintiff – sufficiency of plaintiff's evidence – inconsistency on face of affidavit – proof of sum advanced inadequate – whether defence obviously untenable – opportunity for defendant to amend inadequate pleadings – arguable case for relief MORTGAGE AND SECURITIES – mortgages – form, validity and effect – whether arguable case that mortgage unjust or plaintiff's conduct unconscionable – 23-year bank mortgage replaced by one repayable in full in six months – interest rate varied from 7% to 15% compounding daily Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1 Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 20, 29 Contracts Review Act 1980 (NSW), s 9 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 13.4 Cases Cited: Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 Category: Principal judgment Parties: Safwan Nizar Chalak (Applicant) G & G Mikhael Pty Ltd (Respondent) Representation: Counsel: Mr D Sulan SC/Mr T Rollo (Applicant) Mr Y Young/Ms A Lim (Respondent)