AMP Bank Ltd v Melhem [2014] NSWSC 1816

Supreme Court New South Wales

Medium Neutral Citation: AMP Bank Ltd v Melhem [2014] NSWSC 1816 Hearing dates: 17 December 2014 Decision date: 17 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff, AMP Bank Limited, against the Defendant for possession of the land comprised in Certificate of Title Folio Identifier 3/1/759098, being the land situated at and known as 3 Livingston Road, Wingen in the State of New South Wales. 2. Balance of Notice of Motion stood over for hearing before Davies J at 2pm on 24 April 2015. Catchwords: REAL PROPERTY - possession of land - default under mortgage - defendant admits all allegations in statement of claim - judgment non admissions - summary judgment Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Interlocutory applications Parties: AMP Bank Ltd ( Plaintiff) Rousell Antanios Melhem (Defendant) Representation: Counsel: J Hynes ( Plaintiff) In person (Defendant) Solicitors: HWL Ebsworth Lawyers ( Plaintiff) In person (Defendant) File Number(s): 2013/28800

Judgment 1These proceedings commenced on 30 January 2013 seeking possession of land at 3 Livingston Road, Wingen and seeking a judgment for two specific sums of money as a result of two loans made by the Plaintiff to the Defendant. A Defence was filed by the Defendant, acting for himself, on 14 June 2013. In that defence he agreed with all of the paragraphs in the Statement of Claim but resisted the Plaintiff's claim for debt. He agreed expressly that the Plaintiff ought to be entitled to judgment for possession of the land as a result of the default under the loan agreements and the mortgage. 2The Plaintiff filed a Notice of Motion on 10 December 2014 seeking summary judgment against the Defendant. That Motion has come before me this morning. The Defendant has appeared for himself. He has informed me that a solicitor who had been acting for him had received a report from a psychiatrist suggesting that the Defendant did not have legal capacity. I have not seen any report from a psychiatrist to know when it is said that he lacked the legal capacity. 3The only material I have before me is the Statement of Claim, the Defence and the Plaintiff's Notice of Motion. The Defendant in fact agrees that the land should be sold and he seemed anxious to be able to be in a position to consent to that course by a formal order of the Court. In those circumstances the Plaintiff has demonstrated both that admissions are made and that there is no arguable defence to the claim for possession in the matter. Accordingly, the Plaintiff is entitled to judgment either on admissions pursuant to r 17.7 Uniform Civil Procedure Rules 2005 (NSW) or summary judgment. 4The order that I will make is that there be judgment for the Plaintiff against the Defendant for possession of the land comprised in certificate of title folio identifier 3/1/759098 being the land situated at, and known as, 3 Livingston Road, Wingen in the State of New South Wales. 5The Plaintiff wishes to sell the land and then review its position as far as the claim for debt is concerned. In those circumstances, the proceedings should be stood over to a date in the new term.