Owens v Pacific Property Resources Pty Ltd [2013] NSWSC 1553

Supreme Court New South Wales

Medium Neutral Citation: Owens v Pacific Property Resources Pty Ltd [2013] NSWSC 1553 Hearing dates: 18/10/2013 Decision date: 18 October 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1) Summary judgment for possession of the land described in folio identifier 1/1036705 is granted to the plaintiffs pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005; (2) I grant leave to the plaintiff to apply for the issue of a writ of possession forthwith; (3) I adjourn the proceedings for directions by the Common Law Case Management Registrar at 9am on 3 March 2014; (4) I grant liberty to apply for an earlier date which liberty may be exercised by written application to the Registrar. Catchwords: PRACTICE AND PROCEDURE - application for summary judgment under r13.1 Uniform Civil Procedure Rules 2005 (NSW) in respect of claim for possession of real property following mortgage default Legislation Cited: Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Interlocutory applications Parties: Graham Douglas Owens (plaintiff) Pacific Property Resources Pty Ltd (defendant) Representation: Counsel: AG Rogers (plaintiffs) No appearance (defendant) Solicitors: Baccus Investments Ltd (plaintiffs) No appearance (defendant) File Number(s): 2013/208077

EX TEMPORE Judgment 1I am dealing with the matter of Graham Douglas Owens and Others and Pacific Property and Resources Pty Ltd, a matter commenced in the Possessions List. 2The plaintiff seeks summary judgment under rule 13.1 Uniform Civil Procedure Rules 2005 (NSW) in respect of its claim for possession made in the statement of claim filed on 9 July 2013. 3A defence has been filed. However, rule 13.1 empowers the court in the exercise of its discretion to grant summary judgment to a plaintiff if two conditions are met. The first is that there is evidence of the facts on which the claim, or part of the claim, is based. The second is there is evidence given by the plaintiff or by some responsible person that in the belief of the person giving the evidence the defendant has no defence to the claim, or part of the claim, except as to the amount of any damages claimed. 4The plaintiffs move on the affidavit of their solicitor Rhonda Galayini sworn on 12th September 2013. The proceedings are brought on a registered mortgage number AH 528690Y, a copy of which is an exhibit to Ms Galayini's affidavit. That is to say, the mortgage is registered under the provisions of the Real Property Act 1900 (NSW). The principal sum was $4,000,000 and interest instalments were due on the first day of each month, the first instalment being due on 1 March 2013. 5According to Miss Galayini's affidavit, whom I find is a responsible person within the meaning of the rule, the defendant defaulted on the obligation to pay instalments virtually from the outset. By 1st April the sum of $85,000 ought to have been paid but partial payments only had been made on 7th March and 5th April 2013 totalling $65,000. No further payments have been made under the mortgage since, despite the repeated demands made on behalf of the plaintiffs on a dozen occasions between 3 May and 10 July 2013. 6Mr AG Rogers, who appears on behalf of the plaintiffs, relies upon the provisions of s 60 of the Real Property Act and, in particular, paragraph (c) of the provision. It provides that the mortgagee upon default in payment, inter alia, of any interest secured by any mortgage may bring proceedings in the Supreme Court for the possession of the land. In this regard, the mortgagee has the same rights as a mortgagee would have enjoyed at common law. 7I note that the mortgage itself, in clause 61, and the loan agreement in clause 102, each purport to provide a right of possession on default. It seems to me that on the evidence before me, the statutory right upon which Mr Rogers relies has been made good, and notwithstanding the defence filed, I am satisfied on the basis of the evidence of Miss Galayini that the defendant has no defence to the claim for possession. 8The legal test applicable to summary judgment is well known and requires no recitation of the many authorities by me in the context of the present case. 9I am comfortably satisfied that the outcome of the plaintiffs' claim for possession is attended by sufficient certainty for me to exercise the power conferred by rule 13.1. Accordingly, I make the following orders: (1)Summary judgment for possession of the land described in folio identifier 1/1036705 is granted to the plaintiffs pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW). (2)I grant leave to the plaintiff to apply for the issue of a writ of possession forthwith. (3)I adjourn the proceedings for directions by the Common Law Case Management Registrar at 9am on 3 March 2014. (4)I grant liberty to apply for an earlier date which liberty may be exercised by written application to the Registrar.