Robina Ann Edwards & Another v Tillers Forge Pty Limited [2007] NSWSC 96

New South Wales Supreme Court

CITATION : Robina Ann Edwards & Another v Tillers Forge Pty Limited [2007] NSWSC 96

HEARING DATE(S) : 13 February 2007

JUDGMENT DATE : 20 February 2007

JUDGMENT OF : Barr J at 1

DECISION : 1. Direct the entry of a verdict and judgment for the plaintiffs against the defendant in the sum of $73,450.00. 2. Order that the plaintiffs have judgment for possession of the land described in Folio 1/306994 and known as 78 Adams Street Narrandera. 3. Grant leave to the plaintiffs to issue a writ of possession forthwith.4. Order the defendant to pay the plaintiffs' costs.

PARTIES : Robina Ann Edwards, Austin John Russell, Tillers Forge Pty Limited

FILE NUMBER(S) : SC 12941/2002

COUNSEL : M J Gollan N/A (In person)

SOLICITORS : Lee & Lyons Lawyers N/A (In person)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

20 FEBRUARY 2007

12941/2002 ROBINA ANN EDWARDS & ANOTHER v TILLERS FORGE PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiffs, Robina Ann Edwards and Austin John Russell, seek orders against the defendant, Tillers Forge Pty Limited, granting them possession of certain land and orders for the payment of monies and interest thereon pursuant to a mortgage. The plaintiffs are executors of the estate of the late Ann Lillian Telford, who died on 7 December 1999. On 2 December 1998 the defendant granted to Mrs Telford a mortgage over the property described in Folio 1/306994 known as 78 Adams Street Narrandera (the land). The defendant mortgagor's common seal was affixed to the mortgage and Mr Maurice Anthony Russell (Mr Russell) signed it, describing himself as the sole director. By annexure A to the mortgage, the mortgagor, using a common form of words, irrevocably appointed the mortgagee its attorney following upon any breach or default and made certain covenants, all expressly in consideration of $50,000.00. 2 The Statement of Claim was filed on 29 October 2002. It was drafted by a legal practitioner and its intention and meaning were clear. The Defence was not filed until 13 May 2005, after the conclusion of protracted proceedings during which default judgment was set aside. It was prepared, I think, by Mr Russell, who represented the defendant throughout. He is not a legal practitioner. The meaning of the Defence was far from clear at the hearing. Following explanation by Mr Russell, I permitted him to conduct his case informally and in a manner intended to prove the case he wished to put, even though that was not a case he had pleaded. I would grant leave to amend the Defence accordingly. 3 By paras 1, 3 and 4 of the Statement of Claim the plaintiffs pleaded the death of Mrs Telford, and the grant to them of probate of her will and asserted that the defendant was the registered proprietor of the land. The Defence admitted those assertions. 4 By para 5 of the Statement of Claim the plaintiffs pleaded the grant by the defendant of the mortgage. The Defence was as follows - Item 5 denies the amount. The correct Amount was originally $40,000 The balance of $10,000 was never paid to the defendant 5 By paras 6 and 7 of the Statement of Claim the plaintiffs pleaded the provisions of memorandum No Q860000 as annexure A to the mortgage and a covenant to repay Mrs Telford the principal amount, or so much of it as remained unpaid, on 31 October 2006 or, in the event of her earlier death, within six months after her death, and in the meantime by monthly instalments of $500.00, commencing on 31 July 1998. By a second paragraph numbered 7 the plaintiffs pleaded the provisions of annexure A for the payment of interest. 6 The only Defence response to these paragraphs was as follows - Item 6 – the defendant does not have annexure A Item 7: agrees that interest is owed on the Unpaid portion of the loan – namely $6.250,00 7 By para 8 of the Statement of Claim the plaintiffs pleaded the provision in cl 6 of annexure A granting Mrs Telford the liberty to exercise the powers of a mortgagee upon default. The response was as follows - 8 Denied 8 Paras 9 and 10 of the Statement of Claim were as follows - 9. The defendant: (a) has not paid monthly instalments of principal and interest between 31 July 1998 and the expiration of the six month period after the death of Ann Lillian Telford; and