New South Wales Rural Assistance Authority v Te Velde [2003] NSWSC 571

New South Wales Supreme Court

CITATION : New South Wales Rural Assistance Authority v Te Velde [2003] NSWSC 571 HEARING DATE(S) : 31/03/03, 01/04/03, 04/04/03, 23/06/03 JUDGMENT DATE : 26 June 2003

JUDGMENT OF : Newman AJ at 1 DECISION : Plaintiff is entitled to the relief it seeks in the action. Short minutes of order to be handed up within three days of delivery of these reasons.

CATCHWORDS : Possession of land - Limitation Act 1969, Rural Assistance Act 1989 - power of plaintiff to commence proceedings - waiver Rural Assistance Act 1989 (NSW) State Bank Act 1981 (NSW) LEGISLATION CITED : Miscellaneous Acts (State Bank Repeal and Amendment Act) 1981 (NSW) Limitations Act 1969 (NSW) Real Property Act 1900 (NSW) PARTIES : New South Wales Rural Assistance Authority Janice Leslie Te Velde FILE NUMBER(S) : SC 10891/01 COUNSEL : Pl: S Hughes Def: A Jungwirth/ N Obrart SOLICITORS : Pl: Messrs Golsby Whitely Def: Jackson Smith

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

Thursday 26 June 2003

10891/01

NEW SOUTH WALES RURAL ASSISTANCE AUTHORITY v JANICE LESLIE TE VELDE

JUDGMENT 1 HIS HONOUR: This is a claim for possession of land brought by the plaintiff as the successor to former state instrumentalities. The defendant is the registered proprietor of the land subject to the claim. 2 The two state instrumentalities for which the plaintiff stands as successor were the Rural Assistance Board and the State Bank of New South Wales. The plaintiff, a statutory corporation, by virtue of the Rural Assistance Act 1989, the State Bank Act 1981 and the Miscellaneous Acts (State Bank Repeal and Amendment Act) 1981 is the successor in title to loans made by the two previous entities. 3 Initially the question of the plaintiff's right to sue was put in issue by the defendant. In the course of the hearing the defendant through its counsel properly conceded the plaintiff's right to sue. I should add that in my view the concession made by counsel for the defendant was based on entirely correct grounds and coincides with my own view as to the right of the present plaintiff to sue. In view of the concession made it is not necessary for me to give detailed reasons for reaching my own conclusion. 4 The defendant is the registered proprietor of the land described in certificate of title folio identifier 3/737290, folio identifier 4/737290 and folio identifier 5/737290 known as "Hillview", Bolivia via Tenterfield. 5 There was no issue at the hearing that the two previous entities in whose shoes the plaintiff now stands lent the defendant moneys secured by way of mortgage. 6 First on the 10th September 1979 the Rural Assistance Board lent the defendant the sum of $12,000. The terms of that loan were that the principal amount lent plus interest thereon at the rate of 8% per annum would be repayable over a term of 7 years by equal annual payments of $2,310 commencing on the 10th September 1980 and ending on the 10th September 1986. 7 Second the State Bank of New South Wales on the 6th November 1980 (when it was then known as the Rural Bank of New South Wales) lent the defendant the sum of $5,000. The terms of that loan were that the principal sum together with interest thereon at the rate of 4% per annum would be repaid by the defendant over a term of 7 years by annual repayments of $1,206 commencing on 30th November 1983 and ending on the 30th November 1989. 8 As I have said both loans were secured by way of mortgage over the property I have described above. The loan to the defendant by the Rural Assistance Board was secured by mortgage number R488019 and the loan made by the then Rural Bank was secured by mortgage number S 202968 over the subject property. There was no issue that the defendant was in default in respect of both loans. Indeed it seems that other than a payment of $75 recorded as having been made on the 22nd November 1990 the defendant has made no payments in respect of either loan from the time of the inception of both loans. 9 In respect of that payment the defendant in evidence conceded that it had in fact been paid. In cross examination the following exchange occurred: "Q. The Authority's ledger accounts show that there was a credit to one of the loan accounts of $75 in about 1990. Are you able to tell us whether or not you in fact made that payment? A. Yes. Q. You say you made that payment do you? A. Yes. Q. And up until today, the only payment that had ever been made with respect to either of the loans. Do you agree with that? A. (no verbal reply) Q. Do you agree with that? A. Not intentionally but yes, that's true."