SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Australian Secure Capital Fund Ltd v Haider |
Citation: | [2023] ACTSC 205 |
Hearing Dates: | 28 July 2023 and 1 August 2023 |
Decision Date: | 1 August 2023 |
Before: | Mossop J |
Decision: | 1. The default judgment entered on 30 June 2023 is set aside. 2. There is no order as to the costs of the application. 3. The proceedings are listed in the Registrar’s directions list at 9.30am on 7 August 2023. |
Catchwords: | PRACTICE AND PROCEDURE – DEFAULT JUDGMENT – Application to set aside default judgment – default judgment sought and obtained in circumstances where defendant failed to file a defence – where default judgment would enable plaintiff to seek possession of premises used by the defendants to secure loan – whether absence of first plaintiff on default judgment application warrants setting aside of judgment – whether the proposed defence is meritorious – whether judgment should be set aside due to a fundamental defect in the mortgage document forming the basis for the claim for possession – default judgment set aside – no orders as to costs |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 102, 1128 Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) National Credit Code (Cth), ss 5(1), 6(1)(a), 13(1), 76, 77(c) |
Texts Cited: | Australian Financial Complaints Authority Complaint Resolution Scheme Rules (13 January 2021) |
Cases Cited: | Haider v Gudelj [2019] ACTSC 213 Haider v Gudelj [2021] ACTCA 9; 16 ACTLR 1 |
Parties: | Australian Secure Capital Fund Ltd as trustee for the ASCF Select Income Fund (First Plaintiff) ASCF Managed Investments Pty Ltd (Second Plaintiff) Iqtidar Haider (First Defendant) Maria Haider (Second Defendant) |
Representation: | Counsel D Robens (First and Second Plaintiff) R Markham (First and Second Defendant) |
| Solicitors Summer Lawyers ( First and Second Plaintiff) Adero Law ( First and Second Defendant) | |
File Number: | SC 8 of 2023 |
MOSSOP J:
Introduction
These proceedings seek the possession of a residential property in Chapman which was given as security by the defendants, Iqtidar Haider and Maria Haider, for a loan made to a company that they controlled, I Haider Pty Ltd (Company). The proceedings were commenced on 12 January 2023 and served on 22 January 2023. Default judgment was granted in favour of the second plaintiff against the defendants on 29 June 2023 and the order entered on 30 June 2023. By application in proceeding dated 11 July 2023 the first and second defendants seek an order that the default judgment dated 30 June 2023 be aside. They also seek an order for costs and certain other directions.
The defendants…
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- Case
- [2023] ACTSC 205
- Decision Date
CaseChat Overview and Summary
The court found that the default judgment should be set aside due to a fundamental defect in the mortgage document forming the basis for the claim for possession. The registered mortgage differed from the terms that the defendants had agreed on and appeared to have incorporated terms relating to a completely different loan given to a completely different person. The court found that the defendants had a good defence to the claim for possession and that the plaintiffs were aware of the defect in the mortgage but proceeded with the application for default judgment regardless. The court set aside the default judgment, made no order as to the costs of the application, and listed the proceedings in the Registrar’s directions list on 7 August 2023. The court found that the default judgment should be set aside due to a fundamental defect in the mortgage document forming the basis for the claim for possession. The registered mortgage differed from the terms that the defendants had agreed on and appeared to have incorporated terms relating to a completely different loan given to a completely different person. The court found that the defendants had a good defence to the claim for possession and that the plaintiffs were aware of the defect in the mortgage but proceeded with the application for default judgment regardless. The court set aside the default judgment, made no order as to the costs of the application, and listed the proceedings in the Registrar’s directions list on 7 August 2023.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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