Lawteal Pty Limited v McClymont & anor [2009] NSWSC 637

New South Wales Supreme Court

CITATION : Lawteal Pty Limited v McClymont & anor [2009] NSWSC 637

HEARING DATE(S) : 6-7 July 2009 JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

EX TEMPORE JUDGMENT DATE : 7 July 2009

DECISION : Judgment for the Plaintiff

CATCHWORDS : POSSESSION OF LAND - Mortgage - Default - Whether Consumer Credit Code excluded - Facts - No special matter of principle

LEGISLATION CITED : Real Property Act 1900

CATEGORY : Principal judgment

Bahadori v Permanent Mortgages Pty Limited [2008] NSWCA 150; 72 NSWLR 44 CASES CITED : Benjamin v Ashikian [2007] NSWSC 735 Carter & anor v Schmierer [2003] QSC 035 Cook & anor v Permanent Mortgages Pty Limited [2007] NSWCA 219

LAWTEAL PTY LIMITED - Plaintiff PARTIES : Graham James McCLYMONT - First Defendant Selma Maria McCLYMONT - Second Defendant

FILE NUMBER(S) : SC 2007/15371

A Rogers - Plaintiff COUNSEL : In person - First Defendant In person - Second Defendant

SOLICITORS : Baccuslegal - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 7 July 2009 15371/07 - LAWTEAL PTY LIMITED v GRAHAM JAMES MCCLYMONT & ANOR JUDGMENT

1 HIS HONOUR: The action before the court seeks possession of identified premises being a strata unit which I will refer to as the property. The plaintiff is a mortgagee and the defendant mortgagors are husband and wife who have appeared in person to resist the claim. 2 The defence does not traverse the allegations in the statement of claim which I can briefly recapitulate together with some background facts which have emerged from the evidence. 3 The property is the defendants' residence. In about August 2004 a then current mortgagee had obtained judgment for possession of the property and a writ of execution had issued. The defendants sought refinance through a broker which was then called The Loan Enquiry Centre Pty Ltd and later named Save Finance Pty Ltd. It was not placed in evidence but I understand it to be common ground that that corporation is now in liquidation. 4 Annexed to an affidavit of the first defendant of 26 June 2009 is a letter of advice to creditors from Worrells Insolvency and Forensic Accountants which states inter alia: "The company initially entered into voluntary administration on 12 December 2007. The company subsequently executed a deed of company arrangement on 4 April 2008. At a meeting of creditors on 4 December 2008 it was resolved that the deed of company arrangement be terminated and subsequent to the termination it was resolved that Michael Hird and Nick Malanos be appointed liquidators pursuant to section 446A."