Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79

Supreme Court New South Wales

Medium Neutral Citation: Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79 Hearing dates: 4 February 2020 Date of orders: 14 February 2020 Decision date: 14 February 2020 Jurisdiction: Common Law Before: Johnson J Decision: 1. The Defendants' Notice of Motion filed 4 September 2019 is dismissed. 2. The Defendants are to pay the Plaintiffs' costs of the Defendants' Notice of Motion filed 4 September 2019. 3. Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005, summary judgment is given to the Plaintiffs for possession of the whole of the land described in Folio Identifier 19/12/31637 being the land situated and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales (the Malabar property). 4. The Plaintiffs have leave to issue a writ of possession forthwith with respect to the Malabar property. 5. The Defendants are to pay the Plaintiffs' costs of the Plaintiffs' Notice of Motion filed 17 September 2019. Catchwords: REAL PROPERTY - mortgagee claim for possession of land arising from alleged default under mortgage - application by mortgagees for summary judgment seeking order for possession - whether any arguable defence to claim for possession - mortgagors allege conduct by mortgagees which prevented payments due under loan agreement and mortgage - conduct complained of by mortgagors post dated entry into loan agreement and mortgage - held claim of mortgagors did not impeach mortgagee's title - no arguable defence to claim for possession - summary judgment granted to Plaintiffs Legislation Cited: Powers of Attorney Act 2003 Uniform Civil Procedure Rules 2005 Cases Cited: Commonwealth Bank of Australia v MLD Financial Services & Management Pty Limited [2015] NSWSC 1476 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74 Morel v Bank of Queensland Limited [2015] QCA 58 O'Brien v Bank of Western Australia (2013) 16 BPR 31,705; [2013] NSWCA 71 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 Texts Cited: --- Category: Procedural and other rulings Parties: Oxygen Funding Solutions Pty Limited (First Plaintiff) Catalyst Provisional Lending Pty Limited (Second Plaintiff) John Ramsay (Third Plaintiff)