Westpac Banking Corporation v Glynn [2022] NSWSC 1770

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Glynn [2022] NSWSC 1770 Hearing dates: 15 December 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: See [33] Catchwords: SUMMARY JUDGMENT – possession of land – no question of principle Legislation Cited: Real Property Act 1900 National Credit Code Uniform Civil Procedure Rules 2005 Cases Cited: McFarlane v McFarlane [2021] VSC 197 Re Culleton [2016] FCA 1193 Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [140] Category: Principal judgment Parties: Westpac Banking Corporation (ABN 33 007 457 141) (Plaintiff) Susan Gabrielle Glynn (Defendant) Representation: Counsel: M Paterson, Minter Ellison (Plaintiff) Self-represented (Defendant)

Solicitors: Minter Ellison (Plaintiff) Self-represented (Defendant) File Number(s): 2021/208023

EX TEMPORE JUDGMENT (revised from transcript) 1. This judgment concerns a notice of motion filed on 1 September 2022 seeking summary judgment of a claim for possession of land at Mandalong, based upon default in payment of loan amounts said to be owing under a mortgage.

Background 1. The plaintiff, Westpac Banking Corporation ("Westpac"), seeks possession of the subject property pursuant to a mortgage the defendant, Ms Glynn, was said to have been entered into on 4 March 2009. The mortgage was said to secure two loan facilities proffered to Ms Glynn being two loan accounts, one with a limit of $150,000 and the second with a limit of $280,000. 2. The terms of the loan facilities were varied from time to time including by an extension of their repayment date. Clause C2 of the common provisions to the mortgage contained a term, often included in mortgages, that provided if there was a failure to make a payment due, and the failure continued for at least seven days, then the lender may notify of the failure, and if that failure continues for at least 31 days up to service of the notice, then the lender may take possession of the property. 3. Westpac contends that by 28 October 2020 Ms Glynn was in default under the first loan account for an amount of $17,322.34, which had been outstanding for a period of at least seven days. On the following day it served a notice, both under section 57(2)(b) of the Real Property Act 1900 and section 88 of the National Credit Code in respect of that default which was not remedied within the time period stipulated. 4. With that breach still not having been remedied, Westpac commenced these proceedings by filing a statement of claim on 21 July 2021, in the short‑form seeking possession. There were difficulties with service and substituted service was effected in early March of this year. After some exchange of materials, a defence was eventually filed on about 15 August 2022. It was the terms of that defence that warranted this summary judgment application. 5. The notice of motion was first listed for hearing before me on 1 December 2022. On that day Ms Glynn indicated that she had not received a copy of the court book. The matter was adjourned until today. When the matter was called on today, it was clear that Ms Glynn had received the court book. 6. In the meantime, Ms Glynn had filed a lengthy affidavit in support of an adjournment application to which I will come to shortly. Also, during the course of her submissions, she renewed an application for the adjournment and also sought leave to call a witness to give evidence. It is appropriate that I first record my reasons for refusing the adjournment and leave to call the witness.