Lawteal Seconds Pty Limited v Warrimoo Property Pty Ltd & Ors [2007] NSWSC 1124

New South Wales Supreme Court

CITATION : Lawteal Seconds Pty Limited v Warrimoo Property Pty Ltd & Ors [2007] NSWSC 1124

HEARING DATE(S) : 08/10/2007

JUDGMENT DATE : 12 October 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The plaintiff is to have judgment for possession of the land described in paragraph 1 of the Statement of Claim. Warrimoo Pty Ltd is to pay the costs of the proceedings. The exhibits may be returned.

CATCHWORDS : Claim for possession - summary judgment - joinder of defendants - alleged estoppel

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW)

Lawteal Seconds Pty Limited (Pl) Warrimoo Property Pty Ltd (1st Def) ICA Group Pty Ltd (2nd Def) Vanessa Huxley (nee Watson) (3rd Def) PARTIES : Gregory John Huxley (4th Def) Robert Gregory Huxley (5th Def) Pace Buckley BHNF Vanessa Huxley (6th Def) Zara Huxley BHNF Vanessa Huxley (7th def) Edward Huxley BHNF Vanessa Huxley (8th Def) Ava Huxley Huxley BHNF Vanessa Huxley (9th Def)

FILE NUMBER(S) : SC 10785/07

COUNSEL : Mr A. Rogers (Pl) Mr M Foley (Sol) (Def's)

SOLICITORS : RL Kremnizer & Co Solicitors (Pl) Foleys Solicitors (Def's)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

12 OCTOBER 2007

10785/07 Lawteal Seconds Pty Limited v Warrimoo Property Pty Limited & Ors

JUDGMENT 1 HIS HONOUR: These proceedings were commenced by Statement of Claim on 12 February 2007. On 7 August 2007, a special fixture was allocated for the hearing of certain matters. The hearing date was fixed for 8 October 2007. One of the matters was an application by the plaintiff for summary judgment in the proceedings (the application had also been before the Court on 17 September 2007 and there was then no mention by the defendant of the need to rely on further material). The hearing date was about the third occasion on which the application had been referred or fixed for hearing (there had been two abortive referrals to Harrison As J). 2 The relationship of mortgagee and mortgagor exists between the plaintiff and the party which has now become the first defendant. For purposes of convenience, I shall refer to it as the defendant. The plaintiff is a second mortgagee. It holds security over property owned by the defendant in respect of an advance in the sum of $400,000. There has been default under the mortgage. The plaintiff has brought the proceedings for, inter alia, possession of the property. 3 When the matter was called at 10.00am on 8 October 2007, Mr Rogers of Counsel appeared for the plaintiff. There was no appearance at that time on behalf of the defendant. A solicitor (Mr Foley) made an appearance at about 10.15am (as seems to be his custom), after the hearing had commenced. He arrived with an Amended Defence, an Amended Notice of Motion and additional affidavit evidence (despite directions having been given on 16 July 2007 to file material by 30 July 2007). The Court could be excused for concluding that this was yet another manoeuvre to force a further adjournment. 4 A short adjournment was granted to enable settlement negotiations to take place. The short adjournment was not productive and the hearing continued thereafter. A decision was made to deal with the Notice of Motion for summary judgment of the possession claim only. 5 The evidence relied on by the plaintiff was of a formal nature. It demonstrated default and a prima facie entitlement to relief. One of the deponents was the subject of lengthy cross-examination (which largely concerned the content of documentation which was either in or came to be in evidence). 6 The defendant relied on a number of affidavits. There was no cross-examination. This material was directed, inter alia, to showing that the defendants had a defence by way of estoppel. 7 The alleged estoppel is the subject of allegations made in an Amended Defence. This Amended Defence was filed in Court on the day of hearing, following a reluctant concession from the plaintiff (who was desperate to proceed on the hearing day because of its concern of insufficient equity to recover even the unpaid principal). 8 The alleged estoppel is said to rise in circumstances where the defendant was seeking a refinancing so that a payment out of the plaintiff's mortgage could take place. 9 The relevant documentation is an indicative loan offer. It was made by Trendsetter Mortgages Pty Ltd (Trendsetter). It was accepted by the defendant. It contained, inter alia, the following provisions:- " 18. Refinance of existing loan Where this loan is a renewal of an existing mortgage with a client of RL Kremnizer & Co, that is in default, enforcement will be suspended for 14 days following the date of the valuation. It will be your responsibility to ensure that the new loan is settled within that period. 19. Internal Refinance This clause applies where this application is a refinance (or proposed refinance) of a current mortgage held by a client of RL Kremnizer & Co. In the event that this application does not proceed, Trendsetter Mortgages Pty Ltd and RL Kremnizer & Co are authorised to deduct all amounts payable from the current mortgage. 27. Deposit Upon the signing of this letter of offer the Borrower shall pay a non-refundable deposit on the Valuation fee, Establishment fee and legal expenses of $9,240.00. Should any matters provided for in this latter not prove satisfactory to either the Lender or the Solicitor for the Lender this amount will be forfeited." 10 For the purposes of clause 18, a valuation was obtained. It was dated 29 June 2007. Trendsetter did not proceed with the loan. The plaintiff filed the Notice of Motion for Summary Judgment on 4 July 2007 (it was returnable on 17 July 2007).