Capital Securities XVII Pty Ltd v Yusofzai [2019] NSWSC 468

Supreme Court New South Wales

Medium Neutral Citation: Capital Securities XVII Pty Ltd v Yusofzai [2019] NSWSC 468 Hearing dates: 24 April 2019 Date of orders: 29 April 2019 Decision date: 29 April 2019 Jurisdiction: Common Law Before: Fagan J Decision: Summary judgment for the plaintiff for possession of the mortgaged land. Catchwords: MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession – land already encumbered by mortgage to secure prior debt – no triable issue raised that may deny plaintiff judgment for possession

CONTRACTS — unjust contracts — under statute – s 7(1)(b) Contracts Review Act – whether guarantors to mortgage correctly understood transaction – no special disadvantage proved on facts – no unjust or unconscionable advantage Legislation Cited: Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) Cases Cited: Commercial Bank of Australia Ltd v Amadio (1986) 151 CLR 447; [1983] HCA 14 Yusofzai v Andask Pty Ltd [2019] NSWSC 124 Category: Procedural and other rulings Parties: Capital Securities XVII Pty Ltd (plaintiff) Zahra Yusofzai (defendant) Representation: Counsel: A Rose (plaintiff) S Gupta (defendant)

Solicitors: QBM Lawyers (plaintiff) Gupta & Co (defendant) File Number(s): 2018/196119 Publication restriction: No

Judgment 1. HIS HONOUR: There are before the Court two notices of motion. The first, filed by the first and second defendants on 17 April 2019, seeks leave to file an amended defence and a cross-claim. The second, filed in amended form by the plaintiff on 27 February 2019, claims summary judgment for possession of land pursuant to r 13.1 of the Uniform Civil Procedure Rules.