New South Wales Supreme Court CITATION : Ginelle Pty Limited v Singh [2010] NSWSC 579 HEARING DATE(S) : 9 March 2010 JUDGMENT OF : Latham J EX TEMPORE JUDGMENT DATE : 9 March 2010 DECISION : Notice of Motion filed on 8 March 2010 is dismissed with costs. Any further documents filed in the present proceedings are to be filed with 3 days notice to the plaintiffs CATCHWORDS : POSSESSION - Notice of Motion to set aside Judgement - no question of principle LEGISLATION CITED : Consumer Credit Act CATEGORY : Consequential orders Ginelle Pty Limited - Plaintiff PARTIES : Balbir Singh - 1st Defendant Prem Jeet Kaur Singh - 2nd Defendant FILE NUMBER(S) : SC 292530/09 COUNSEL : Markus Young - Plaintiff Jonathan Taylor - Defendants SOLICITORS : Nugent Wallman & Carter - Plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J 9 March 2010 292530/09 - GINELLE PTY LIMITED v BALBIR SINGH & ANOR JUDGMENT 1 In this matter the proceedings were commenced by statement of claim filed 6 February 2009. The proceedings relate to a debt owed by the defendants to the plaintiff pursuant to a loan extended by the plaintiff to the defendants which was apparently used primarily for the purchase of a residential property. 2 A defence was filed on 4 March 2009 by the defendants, para 14 of which asserted that the loan was governed by the Consumer Credit Code on the basis that the loan was for personal and domestic purposes and was within the definition of s 11 of the Code. 3 On 3 April 2009 the plaintiff filed a notice of motion for summary judgment. An affidavit in support of that notice of motion filed on the same day annexes (Annexure C), a form under the Consumer Credit Act entitled Consumer Credit Code Declaration. 4 The form, on its face, indicates that, in the event of execution of the declaration, the signatories lose their protection under the Consumer Credit Code. Annexure C is signed by both defendants and dated 17 December 2008. 5 On 9 June 2009 the matter came back before this Court whereupon short minutes of order were handed up to Justice Hoeben. The short minutes of order stood the proceedings over to the Registrar on 1 December 2009. Costs were reserved and the Court noted the agreement between the parties. Those short minutes of order are also signed by the defendants and the agreement attached to the short minutes of order bears the initials of both defendants. 6 The agreement substantially set out a schedule of payments and, in the event of default, the agreement provided that the plaintiff was to cause judgment to be entered and to proceed to enforce that judgment and the defendants agreed to sign such documents and perform such acts required to cause the judgment to be entered and enforced. 7 The schedule of payments was not met and, accordingly, in compliance with the terms of the agreement, judgment was entered by this Court on 2 December 2009. The Court gave judgment to the plaintiff for possession of the land at 20 Spencer Road, Londonderry. Leave to issue a writ of possession forthwith was also granted. Judgment was entered for the plaintiff against the defendants for $469,572.90 and the defendants were ordered to pay the plaintiff's costs of the proceedings. 8 In accordance with the execution of the writ of possession, there is a notice to vacate in existence which expires on 16 March 2010, one week from today's date. 9 A notice of motion was filed by the defendants on 8 March 2010 seeking to have the judgment set aside, the agreement set aside, and seeking a stay of the execution of the writ of possession. The affidavit in support of that notice of motion, which was sworn by the first defendant, refers to proceedings in the CTTT which I am informed do not concern the present plaintiff. The CTTT proceedings appear to be in relation to financial institutions who were the original lenders to the defendants. The affidavit asserts that the defendants have been the victims of unconscionable conduct by finance brokers, solicitors and lenders. 10 As a result of the lack of instructions which the defendants' counsel was able to obtain yesterday, the matter was stood over until today's list. 11 The instructions which Mr Taylor presently has are that the words appearing in annexure C of the affidavit filed in support of the notice of motion for summary judgment were not written by his clients, notwithstanding the fact that his clients had in fact executed the documents. The words that are said to be of questionable origin are "re-financing business loan". 12 Be that as it may, there is no evidence before me, nor is there a submission, which even suggests that the defendants did not agree with the terms of agreement reached on 9 June 2009 and entered with the short minutes of order. The judgment obtained by the plaintiff on 2 December 2009 was entirely in accordance with the terms of the agreement and there is, in my view, no reason to set that agreement aside in the absence of any evidence justifying such a course. 13 In all the circumstances, the notice of motion of 8 March 2010 is dismissed with costs. 14 I make an order that any further documents filed in the present proceedings be filed with three days notice to the plaintiff. ********** 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.