Australian Secure Capital Fund Ltd v Haider - [2023] ACTSC 205

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) Electronic Conveyancing National Law 2020 (ACT), s 6 Land Titles Act 1925 (ACT), ss 93, 94 National Consumer Credit Protection Act 2009 (Cth) 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 Integrated Securities No 3 Pty Ltd v Creatrix Web Development & Online Marketing Solutions Pty Ltd [2021] NSWSC 596 Stormer Building Group Pty Ltd v Graham Michael Johnson and Jasminka Mary Johnson [2014] ACTSC 23 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACTSC 205
Decision Date

CaseChat Overview and Summary

The plaintiffs in this case, Australian Secure Capital Fund Ltd and ASCF Managed Investments Pty Ltd, sought the possession of a residential property in Chapman, which was given as security for a loan made to a company controlled by the defendants, Iqtidar Haider and Maria Haider. The defendants had guaranteed the loan, which was for a period of two months and was not paid out at the conclusion of the loan. The plaintiffs sought to enforce the guarantee by obtaining possession of the land and commenced proceedings for possession of the land in January 2023. A default judgment was obtained on 30 June 2023 and the defendants sought to set it aside. The court was required to determine whether the default judgment should be set aside and, if so, on what basis. 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. 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