Supreme Court New South Wales Medium Neutral Citation: Greater Bank Limited v The Official Trustee in Bankruptcy and Marteene [2017] NSWSC 1496 Hearing dates: 26 October 2017 Date of orders: 26 October 2017 Decision date: 26 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier XXXXXXX land situated at and known as XX XXXXXXX XXXXXXX in the State of Queensland. (2) The second defendant is to pay the plaintiff's costs of the proceedings excluding the costs of and incidental to the motion before me today. Catchwords: REAL PROPERTY – Mortgage – Application for default judgment for possession – Where property outside New South Wales – Default judgment entered Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) Cases Cited: Simone Starr-Diamond v Talus Diamond (No 3) [2013] NSWSC 351 Category: Principal judgment Parties: Greater Bank Limited (Plaintiff) The Official Trustee in Bankruptcy (First Defendant) Meagan N Marteene (Second Defendant) Representation: Counsel: Solicitors: Hall & Wilcox Solicitors (Plaintiff) File Number(s): 2017/118266 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. These are proceedings for possession. A difficulty was perceived because the property the subject of the plaintiff's mortgage is situated in Queensland. When the plaintiff bank sought judgment in default of a defence, the motion and affidavit were rejected by the Registry because the property was situated outside New South Wales, and therefore the Court could not consider the application. 2. Mr Wallace, solicitor, who appears for the plaintiff today, has persuaded me that the Court does have jurisdiction in respect of this matter notwithstanding the consideration that the security is situated in the State of Queensland. This jurisdiction arises under the provisions of the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), section 3 of which provides that "the jurisdiction of any court is not excluded or limited merely because the proceedings relate to or may otherwise concern land or immovable property situated outside New South Wales". 3. As Mr Wallace pointed out in his helpful submission, and as the heading to that section makes clear, section 3 abrogates what was referred to as the "Mozambique rule" at common law. Section 4 makes clear that the Court may decline to exercise jurisdiction if the Court considers it is not the appropriate Court to hear the proceedings. No concern arises in this regard. 4. By virtue of the Jurisdiction of Courts (Cross-Vesting) Act 1987 enacted in each of the Australian States and by the Commonwealth Parliament, it is well recognised that the superior courts throughout Australia whether State, Territory or Commonwealth, form what has been referred to as a national system of courts. As Slattery J pointed out in Simone Starr-Diamond v Talus Diamond (No 3) [2013] NSWSC 351 at [6], the effect of the legislation I have referred to is that: "Courts in all Australian states and territories have well-established jurisdiction to make orders in respect of land outside the state and in accordance with the law of the State or territory where the land is situated." 1. There is no suggestion that the law of mortgages of the State of Queensland is, in regard to the mortgagee's right to possession, any different from the law of New South Wales. Accordingly, I hold that I have jurisdiction to enter the default judgment for possession sought by the plaintiff. 2. I should say that there are two defendants. The first is the Official Trustee in Bankruptcy, and the second is the registered proprietor of the land. It is apparent from the affidavit of Thomas Gabriel Baker of 17 October 2017 that the registered proprietor was made bankrupt on 1 December 2016, and that the Official Trustee in Bankruptcy is the trustee of her estate. 3. By letter dated 12 May 2017, the Official Trustee made it quite clear that it had no objection, but did not consent, to the bank's enforcement proceedings of its rights as mortgagee, provided no costs were sought against the trustee. Mr Wallace confirms that no costs order is sought in these proceedings today. 4. It is also clear from Mr Baker's affidavit that the registered proprietor, so far as she has any right to appear now that she is bankrupt, had notice of the proceedings, and on 15 February 2017 in a conversation with Mr Baker, said this: "I have abandoned the property. I am happy for the bank to take possession of it, and I will sign whatever surrender forms are necessary. I can send the keys to the property to the Hamilton branch [of the bank]. I would prefer to do this than go through the court process." 1. Mr Wallace now moves on the notice of motion seeking default judgment on the claim for possession which was rejected by the Registrar, and I give him leave to do so. As I have said, I am satisfied that the statement of claim was duly served, and I am also satisfied from the affidavit of David Rowland, a bank officer, affirmed on 4 August 2017, that no other persons are in occupation of the land in respect of which the order is sought. 2. I am satisfied that the bank was entitled to move for default judgment in all the circumstances, and I direct entry of default judgment in favour of the bank in the following terms: 1. Judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier XXXXXXX being land situated at and known as XX XXXXXXX, in the State of Queensland. 2. The second defendant is to pay the plaintiff's costs of the proceedings excluding the costs of and incidental to the motion before me today. ********** 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. Decision last updated: 02 November 2017