Ask Funding Limited ACN 94 503 385 v Magyari [2010] NSWSC 572

New South Wales Supreme Court

CITATION : Ask Funding Limited ACN 94 503 385 v Magyari [2010] NSWSC 572

HEARING DATE(S) : 19 March 2010

JUDGMENT DATE : 19 March 2010

JUDGMENT OF : Bergin CJ in Eq

DECISION : Declarations and orders for specific performance

CATCHWORDS : MORTGAGES – Whether agreement to give, or cause to be given, a mortgage – SPECIFIC PERFORMANCE – whether loan contract to be specifically performed

CASES CITED : Takemura v National Australia Bank Ltd [2003] NSWSC 339

TEXTS CITED : E L G Tyler, P W Young, C Croft, Fisher & Lightwood's Law of Mortgage, 2nd Australian ed (2005)

PARTIES : Ask Funding Limited (Plaintiff) Claudia Carmen Magyari (Defendant)

FILE NUMBER(S) : SC 2009/290721

COUNSEL : S Golledge (Plaintiff) Claudia Carmen Magyari (in person) (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ in Eq

19 MARCH 2010

2009/290721 ASK FUNDING LIMITED ACN 94 503 385 v CLAUDIA CARMEN MAGYARI JUDGMENT – EX TEMPORE

1 The plaintiff, Ask Funding Limited, was formerly known as Impact Capital Ltd until 26 November 2008. It carries on the business of a lender. 2 Proceedings were commenced by the plaintiff against the defendant, Claudia Carmen Magyari, by way of Statement of Claim filed on 23 September 2009. Although the plaintiff and the defendant have been in communication after the plaintiff commenced the proceedings, an application was made for default judgment and on 29 December 2009 judgment was entered against the defendant in favour of the plaintiff in the amount of $293,054.38 with an order that the defendant pay the plaintiff's costs of $3,039. 3 The plaintiff today seeks a declaration that from about 7 March 2007 there existed between the plaintiff and the defendant an agreement (the Loan Contract) for the defendant to give or cause to be given to the plaintiff a first ranking registered mortgage (the Mortgage) over the whole of her interest in the property, being folio identifier 374/794130 and known as 18 Barclay Close, Kariong in the State of New South Wales (the Property) pursuant to Special Condition 2 and Item 12 of the Loan Contract to secure the repayment to the plaintiff by the defendant of the moneys due and payable under the Loan Contract. 4 The plaintiff also seeks a declaration that the Loan Contract should be specifically performed and carried into effect. The plaintiff also seeks an order that the defendant specifically perform the Loan Contract and carry it into effect and an order that if the defendant fails to comply with the order, a Registrar of the Court be authorised to execute all such instruments and do all such things in the name and on behalf of the defendant as may be necessary to grant to the plaintiff the Mortgage. 5 On 8 March 2010 the plaintiff's solicitors wrote to the defendant advising her that the proceedings were listed for hearing today at 10.00am. That letter included the following: "In the interests of the parties and to avoid further legal costs of the hearing, our client invites you to sign and return to us the enclosed draft mortgage over 18 Barclay Close, Kariong ("the Property") and provide to us your written consent that you will produce the Certificate of Title of the Property to facilitate registration of the Mortgage.