Orde Mortgage Custodian Pty Ltd v Xu [2023] NSWSC 632

Supreme Court New South Wales

Medium Neutral Citation: Orde Mortgage Custodian Pty Ltd v Xu [2023] NSWSC 632 Hearing dates: 22 May 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Jurisdiction: Common Law Before: Garling J Decision: Dismiss the amended Notice of Motion filed 22 May 2023. Catchwords: REAL PROPERTY — possession — plaintiff mortgagee's claim for possession — several promises by defendant to pay arrears — where Sheriff has already taken possession — where defendant makes application for urgent stay of plaintiff's possession — whether to grant stay — stay refused Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Orde Mortgage Custodian Pty Ltd (P) Wenfang Xu (D) Representation: Counsel: P Nagam (P) Self Represented (D)

Solicitors: TG Legal + Technology (P) File Number(s): 2022/385994 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

Background 1. On 22 December 2022, the plaintiff, Orde Mortgage Custodial Pty Ltd ("Orde"), filed a Statement of Claim which claimed possession of a property at 76 John Street, Lidcombe, New South Wales. The Statement of Claim noted that the defendant, Ms Wenfang Xu, was the registered proprietor of the property and that she had obtained a loan from Orde on 8 June 2021. The defendant mortgaged the property as security for that loan. 2. The substance and effect of the mortgage was that if the terms of the mortgage with respect to repayment fixed under the mortgage was not complied with, and if after the requisite notices with respect to default had been issued and there had been no remedying of the default, then Orde was entitled to take possession of the property and obtain a judgment against the defendant for any amount outstanding. 3. The Statement of Claim, together with other documents, were served on the defendant on 19 January 2023. According to an affidavit of a licensed process server, Mr Alexander Taylor, the documents were served personally on the defendant, who identified herself as that person. At the same time, a Notice to Occupier was served on a male occupant of the premises. 4. No Notice of Appearance has been filed on behalf of the defendant.