Certane CT Pty Ltd v Whight

Case [2021] QSC 77

SUPREME COURT OF QUEENSLAND

CITATION:

Certane CT Pty Ltd v Whight [2021] QSC 77

PARTIES:

CERTANE CT PTY LTD ACN 106 424 088 (FORMERLY KNOWN AS SARGON CT PTY LTD)

(Applicant)

v
ELEANOR MARY WHIGHT

(Respondent)

FILE NO/S:

BS 13546 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2021

JUDGE:

Jackson J

ORDER:

The judgment of the court is that:

1.   The plaintiff recover possession of the land described as Lot 1 on Registered Plan 174454, Title Reference 16138153 and Lot 6 on Registered Plan 848064, Title Reference 18458238, both situated at 134 Kundes Road, Mount Samson.

2.   The defendant pay the plaintiff’s costs of the proceeding, including the application for summary judgment, to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JDUGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DAMAGES OR FOR POSSESSION OF LAND – where the applicant plaintiff is registered as mortgagee of land situated at Mount Samson – where the respondent defendant mortgaged the land as security for the debt of Merindah Cattle Company Pty Ltd and personally guaranteed the company’s obligations to the plaintiff – where it was a term of the loan agreement that the principal amount of $783,000 and any other monies owed be paid by 26 March 2020 – where the amounts owing were not paid and the company and the defendant continue to be in default – where the notice of intention to defend and defence filed on 22 January 2021 did not comply with the requirements of the pleading rules –  where the amended defence filed on 1 April 2021 alleged unconscionable conduct by the plaintiff or its agent in connection with the loan agreement and mortgage – whether the defendant has no real prospect of successfully defending the proceeding – whether the defendant has no real prospect of establishing unconscionable conduct on the facts raised by the amended defence – whether the defendant has no real prospect of successfully defending the proceeding because the defendant will not obtain relief avoiding the loan agreement and mortgage – whether the costs of the proceeding should follow the event.

Australian Consumer Law, s 21, s 22, s 237, s 243
Australian Securities and Investments Commission Act 2001 (Cth), s 12CB, s 12CC, s 12GM
National Credit Code, s 76
Trade Practices Act 1974 (Cth), s 51AB, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 166, r 292, r 681, r 703

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202, cited
Coldham-Fussell v Commissioner of Taxation (2011) 82 ACSR 439, cited
Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337, cited
GE Mortgage Solutions Ltd v Fassos [2012] NSWSC 1446, cited
Jams 2 Pty Ltd v Stubbings [2020] VSCA 200,…

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AGLC
Certane CT Pty Ltd v Whight [2021] QSC 77
Case
[2021] QSC 77
Decision Date

CaseChat Overview and Summary

Certane CT Pty Ltd (Plaintiff) has filed an application for summary judgment against Whight (Defendant) in the Supreme Court of Queensland. The Plaintiff is seeking to recover possession of land situated at Mount Samson, which was mortgaged by the Defendant as security for a debt owed by Merindah Cattle Company Pty Ltd. The Plaintiff is also seeking payment of the outstanding debt, interest, and costs. The Defendant has failed to repay the debt and is in default. The Defendant filed a notice of intention to defend and subsequently an amended defence, alleging unconscionable conduct by the Plaintiff or its agent in connection with the loan agreement and mortgage. The Plaintiff contends that the Defendant has no real prospect of successfully defending the proceeding or establishing unconscionable conduct, and that the costs of the proceeding should follow the event.

The court was required to determine whether the Defendant has a real prospect of successfully defending the proceeding or establishing unconscionable conduct on the facts raised by the amended defence. The court also needed to determine whether the Defendant has a real prospect of successfully defending the proceeding because the Defendant will not obtain relief avoiding the loan agreement and mortgage. Finally, the court needed to decide whether the costs of the proceeding should follow the event.

The court found that the Defendant's amended defence did not raise any new facts or legal arguments that could potentially succeed. The court noted that the Defendant had failed to establish any grounds for relief avoiding the loan agreement and mortgage. The court also found that the Defendant had no real prospect of successfully defending the proceeding. The court held that the Plaintiff was entitled to summary judgment and that the costs of the proceeding should follow the event.

The court ordered that the Plaintiff recover possession of the land and that the Defendant pay the Plaintiff's costs of the proceeding, including the application for summary judgment, to be assessed on the indemnity basis.

Orders

Orders of the court

The judgment of the court is that:

1. The plaintiff recover possession of the land described as Lot 1 on Registered Plan 174454, Title Reference 16138153 and Lot 6 on Registered Plan 848064, Title Reference 18458238, both situated at 134 Kundes Road, Mount Samson.

2. The defendant pay the plaintiff’s costs of the proceeding, including the application for summary judgment, to be assessed on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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