Lending 001 Pty Ltd v Dimarti [2022] NSWSC 1136

Supreme Court New South Wales

Medium Neutral Citation: Lending 001 Pty Ltd v Dimarti [2022] NSWSC 1136 Hearing dates: 25 August 2022 Date of orders: 25 August 2022 Decision date: 29 August 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the plaintiff for possession of the land comprised in folio identifier 120/10707 being the land situated at and known as 43 Monterey St, Monterey NSW 2217. 2. The defendants are to pay the plaintiff's costs. Catchwords: MORTGAGES AND SECURITIES - mortgages – rights and remedies of mortgagee – possession – plaintiff seeking summary judgment for possession of land – no dispute between parties that principal sum is owing under mortgage – substance of dispute is amount owing – plaintiff seeking possession and not any amount outstanding – judgment for plaintiff CIVIL PROCEDURE – summary disposal – judgment for plaintiff – defences claimed predatory practices, relief under Contracts Review Act (CRA) and breach of National Credit Code – no material facts pleaded to support reliance on CRA and Code - repeated deficient pleading by debtors to particularise defences – whether summary judgment appropriate where defence relies on CRA - whether defences should be struck out – where no substantive defence demonstrated - plaintiff entitled to summary judgment Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Consumer Credit (New South Wales) Code Contracts Review Act 1980 (NSW) s 9 Conveyancing Act 1919 (NSW) s 12 National Credit Code Real Property Act 1900 (NSW) s 57 Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 14.28, 15.3 Cases Cited: Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208 Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74 Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87; [1983] HCA 25 Fitzgerald v Watson [2011] NSWSC 736 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Michalopoulos v Perpetual Trustees Victoria Limited [2010] NSWSC 1450 Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th Edition 2014 Lexis Nexis) Category: Principal judgment Parties: Lending 001 Pty Ltd (Plaintiff) Carmelo Dimarti (First Defendant) Margherita Dimarti (Second Defendant) Representation: Counsel: P Silver (Plaintiff) In person (First Defendant) J Pope (Second Defendant)