New South Wales Supreme Court CITATION : Olbourne & Ors v Mariott Properties [2003] NSWSC 900 HEARING DATE(S) : 29 September 2003 JUDGMENT DATE : 3 October 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The plaintiffs are to have judgment for possession of the land described in paragraph 1 of the Statement of Claim. Any claims for costs and leave to issue a writ for possession are referred to a Registrar. The Exhibit may be returned. CATCHWORDS : Claim for possession - summary judgment - estoppel - invalidity of provisions - technical deficiencies. LEGISLATION CITED : Supreme Court Rules 1970, Pt 7 r 8, Pt 7 r 8 (1) (b), Pt 40 r 11. CASES CITED : N/A Norman Adrian Olbourne, Janet Dorothy Olbourne and Meccashore Pty Limited (Plaintiffs) PARTIES : v Marriott Properties Pty Limited (Defendant) FILE NUMBER(S) : SC 10565 of 2003 COUNSEL : Mr A Rogers (Plaintiffs) N/A (Defendant) SOLICITORS : R L Kremnizer & Co (Plaintiffs) Foleys (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 3 October 2003 10565 of 2003 Norman Adrian Olbourne & Ors v Marriott Properties Pty Limited JUDGMENT 1 MASTER: Proceedings were commenced by Statement of Claim filed on 7 March 2003. The plaintiffs seek possession of certain residential premises (the premises). 2 The claim is founded on default under a registered mortgage dated 13 August 2002. It is common ground that interest was paid until the monthly payment due on 13 January 2003, that there was default in making the payments due on 13 January 2003 and 13 February 2003, that no payments were made thereafter and that the principal sum has not been repaid. 3 On 5 May 2003, the plaintiffs filed a Notice of Motion seeking summary judgment in respect of the claim for possession. The defended application was heard on 29 September 2003. The plaintiffs relied on an affidavit sworn by Nicole Stein and an affidavit sworn by Jacobus Botes. The defendant relied on an affidavit sworn by Mr Orehek (the sole director and shareholder of the defendant). He was briefly cross-examined. 4 The court has a discretionary power to grant summary relief. There is abundant authority to the effect that the power should be exercised only in what might be described as clear cases. The onus rests with the party seeking relief. 5 The evidence given on behalf of the plaintiffs established a prima facie entitlement to relief. In resisting the application, the defendant relied on the contents of an Amended Defence and what has been described as technical matters (largely, these involved allegations of non-compliance with the rules of the court). 6 The Amended Defence is a lengthy document. Broadly speaking, it purports to throw up issues involving inter alia allegations of estoppel and invalid provisions (including what are said to be penalty provisions). 7 Lengthy submissions were made on behalf of the defendant. The court was not referred to any authority which supported the submissions. 8 I have carefully considered the submissions. In my view, none of the alleged defences constitute a defence to the claim made by the plaintiffs for possession of the premises. In my view, the material does not throw up any triable issue. It is unnecessary to expressly refer to each and every argument that was put on behalf of the defendant. It suffices to merely refer to some of them. 9 The estoppel arguments depend on proof of agency in respect of various parties with whom the defendant dealt prior to the granting of the mortgage. Although I am of the view that such proof is lacking, for present purposes I shall proceed on the assumption that these parties were acting as agents for the plaintiffs. Certain of the arguments were clearly misconceived. There seemed to be confusion and failure to distinguish between what happened on settlement of the transaction and the mortgage itself. But leaving these considerations aside, the arguments were doomed to failure because they were not supported by the evidence. 10 All but one of the provisions said to be tainted lack relevance to the plaintiffs' claim. Any invalidity in those provisions would not disentitle the plaintiffs to the relief sought in these proceedings. Clause 4 of the mortgage (which requires the mortgagor to pay interest by equal monthly payments on the 13th day of each and every month in each of every year) is relevant to the plaintiffs' claim. However, the material contained therein which is presently relied on by the plaintiffs clearly could not be said to be a penalty or otherwise invalid. 11 The defendant's case asserts an entitlement to "allowances". The said allowances appear to relate to what are regarded by the defendant as excessive deductions made from the mortgage moneys on settlement (including deductions made for legal costs and fees). Whether or not these deductions (or any of them) can be properly regarded as excessive would not assist the defendant in these proceedings. At best, they could give rise to a Cross-Claim for damages. 12 The arguments which were said to relate to technical matters can also be said to be misconceived. The questions thrown up by the defendant were not fully argued and the submissions made on its behalf were not helpful. 13 It was said that the plaintiffs had failed to comply with matters required by Pt 40 r 11 of the Supreme Court Rules 1970. These provisions apply only where there is an application for judgment for possession of land against a defendant in his or her absence. In this case, the defendant was not absent. It had both appeared in the proceedings and was represented at the hearing by a solicitor. 14 The provisions had been amended in 1998. The annotations which still appear in Ritchies Supreme Court Procedure NSW are at least in part no longer appropriate. The provisions now deal with inter alia proof of compliance with Pt 7 r 8 (1) (b). 15 The defendant also propounded non-compliance with requirements of Pt 7 r 8 as a matter of defence to the claim. The purpose of these provisions is said to be the protection of occupiers who are not parties to the proceedings. They appear in that part of the rules dealing with Originating Process. Non-compliance with these provisions may be of significance for the purposes of Pt 40 r 11. Subject to that matter, it seems to me that they may not have been intended to provide a defence to a defendant in possession proceedings. Even putting these considerations aside, the contention is hopeless for other reasons. There is no evidence that any party other than Mr Orehek was in occupation of the premises at the relevant time. Be that as it may, it seems to me that the affidavit sworn by Mr Botes does comply with the requirements of the provisions. 16 In my view, the plaintiffs have discharged the requisite onus. I consider that it is one of those clear cases and that the plaintiffs are entitled to summary judgment. 17 The plaintiffs are to have judgment for possession of the land described in paragraph 1 of the Statement of Claim. Any claims for costs and leave to issue a writ for possession are referred to a Registrar. The Exhibit may be returned. ********** Last Modified: 10/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.