Certane CT Pty Ltd v Whight

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.