Bengour Pty Ltd v Figtree

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.