Bengour Pty Ltd v Figtree - [2020] NSWSC 1143

Supreme Court

New South Wales

Medium Neutral Citation: Bengour Pty Ltd v Figtree [2020] NSWSC 1143
Hearing dates: 14 August 2020
Date of orders: 27 August 2020
Decision date: 27 August 2020
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The defence filed by the first and second defendants on 13 May 2020 is struck out.
(2) Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment for the plaintiff against the first defendant as follows:
(a) Judgment for the plaintiff for possession of the land described in folio identifier 52/xxxxx73 known as xx, Moss Vale, New South Wales.
(b) There is leave to issue a writ of possession in respect of the land above forthwith.
(c) The execution of the writ of possession is stayed up to and including 5 pm on Wednesday 30 September 2020.
(3) Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment for the plaintiff against the second defendant as follows:
(a) Judgment for the plaintiff for possession of the land described in folio identifier 52/xxxxx73 known as xx, Moss Vale, New South Wales.
(b) Judgment for the plaintiff for possession of the land described in folio identifier 1/xxxx26 known as xx, Mittagong, New South Wales.
(c) Judgment for the plaintiff for possession of the land described in folio identifier 2/xxxx26 known as xx, Mittagong, New South Wales.
(d) There is leave to issue a writ of possession in respect of each parcel of land above forthwith.
(e) The execution of the writ of possession is stayed up to and including 5 pm on Wednesday 30 September 2020.
(4) The defendants are to pay the plaintiff’s costs.

Catchwords:
LAND LAW – Possession of land – Default on mortgages – Whether defence or proposed amended defence and proposed amended cross claim disclosed a reasonable defence to claim for possession – Mortgagee entitled to possession – Leave granted to issue writs of possession
CIVIL PROCEDURE – Striking out of pleadings – Whether defence disclosed a reasonable defence to claim for possession – Defence struck out
CIVIL PROCEDURE – Summary dismissal – Whether any matters pleaded or proposed to be pleaded by the defendants constituted an arguable defence to the claim for possession – Summary judgment ordered

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
National Consumer Credit Protection Act 2009 (Cth)
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25
Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Spencer v Commonwealth…

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: [2020] NSWSC 1143
Decision Date: 27 August 2020

CaseChat Overview and Summary

Bengour Pty Ltd, the mortgagee, initiated proceedings against Figtree, the mortgagor, seeking possession of land due to the mortgagor's default on the mortgage. The dispute was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the defence and proposed amended defence and cross claim disclosed a reasonable defence to the mortgagee's claim for possession. Additionally, the court needed to decide whether the mortgagee was entitled to possession of the land and if the defence was to be struck out.

The court examined the defence and proposed amended defence and cross claim, concluding that they did not disclose a reasonable defence to the claim for possession. The court found that the mortgagor's default on the mortgage constituted a breach of the mortgage agreement, and as such, the mortgagee was entitled to possession of the land. Consequently, the court granted leave to the mortgagee to issue writs of possession. Furthermore, the court ordered the striking out of the defence as it did not disclose a reasonable defence to the claim for possession.

In summary, the court found that the mortgagor's default on the mortgage rendered the defence insufficient to counter the mortgagee's claim for possession. The mortgagee was granted leave to issue writs of possession, and the defence was struck out as it did not disclose a reasonable defence. The court also granted summary judgment in favour of the mortgagee, finding that the defence did not constitute an arguable defence to the claim for possession.

Orders