Charub Pty Ltd v Triandafyllou - [2019] NSWSC 487

Supreme Court

New South Wales

Medium Neutral Citation: Charub Pty Ltd v Triandafyllou [2019] NSWSC 487
Hearing dates: 23 April 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the plaintiff for possession of the whole of the land in folio identifier 701/1231641 being the land situated at and known as 5A Clareville Avenue, San Souci;
(2) The defendants are to pay the plaintiff’s costs of the proceedings.
Catchwords: LAND LAW – possession of land – application for summary judgment – mortgage given by the defendants as guarantors of a loan agreement – default of loan and mortgage obligations by defendants - whether defendants entitled to redeem the mortgage – whether an intention to sell the property is an offer of redemption – assignment of mortgage – no notice of assignment given – transfer of mortgage registered – no notice of assignment necessary to perfect assignment – ss 51 and 52 Real Property Act – whether a requirement of plaintiff to plead service of s 57(2)(b) notice – whether summary judgment should be granted – defendants’ defences disclose no defence to the claim for possession – summary judgment given
Legislation Cited: Conveyancing Act 1919 (NSW) s 12
Real Property Act 1900 (NSW) ss 51, 52, 57
Uniform Civil Procedure Rules 2005 (NSW) rr 4.11, 13.1, 14.28
Cases Cited: Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd [2013] NSWSC 1184
Duke Group Ltd (In Liq) v Arthur Youn (Reg) and Peat Marwick Hungerfords (Third Party) (No 13) (1991) 5 ACSR 212
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gilmour v Pyramid Building Society (In Liq) (1995) 6 BPR 97531
Harvey v Perpetual Nominees Ltd [2009] NSWSC 1379
Nemeth v Reachcord Pty Ltd (1998) 9 BPR 97729
Property Builders Pty Limited v Adelaide Bank Limited [2011] NSWCA 266; (2011) 15 BPR 29,411
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Suncorp-Metway Limited v Nam Property Holdings Pty Limited [2010] NSWSC 1078; (2010) 16 BPR 30,859
Category: Procedural and other rulings
Parties: Charub Pty Ltd (Plaintiff)
Chris Triandafyllou (First Defendant)
Sevasti Triandafyllou (Second Defendant)
Haralabos Triandafyllou (Third Defendant)
Representation:
Counsel:
A W Smith (Plaintiff)
No appearance (First & Second Defendants)
W Soon (Third Defendant)
Solicitors:
Summer Lawyers (Plaintiff)
Unrepresented (First & Second Defendants)
Madison Marcus Law Firm (Third Defendant)

File Number(s): 2018/395918

Judgment

In these proceedings the plaintiff seeks judgment for possession of the whole of the land in folio identifier 701/1231641 being the land situated at and known as 5A Clareville Avenue, San Souci. Proceedings were commenced on 24 December 2018 and the present iteration of the claim is an amended statement of claim filed 18 March 2019.
The plaintiff relies on default under a mortgage given by the defendants as guarantors of a loan agreement made 11 May 2018 between Pacific 8 Pty Ltd (Pacific) and Spartan Sport Services Pty Ltd (Spartan).…

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.

Continue reading Charub Pty Ltd v Triandafyllou

Details

AGLC: Charub Pty Ltd v Triandafyllou [2019] NSWSC 487
Case: [2019] NSWSC 487
Decision Date: 03 May 2019

CaseChat Overview and Summary

The case of Charub Pty Ltd v Triandafyllou involved a dispute over the possession of land, with the plaintiff, Charub Pty Ltd, seeking summary judgment against the defendants, who were guarantors of a loan agreement. The defendants had given a mortgage as security for the loan, but defaulted on both the loan and mortgage obligations. The defendants argued that they were entitled to redeem the mortgage and claimed that an intention to sell the property constituted an offer of redemption. Additionally, the defendants raised the issue of an assignment of the mortgage to another party, despite no notice of assignment being given. Charub Pty Ltd argued that the assignment was validly perfected under sections 51 and 52 of the Real Property Act, and that no notice of assignment was necessary. The court was required to determine whether the defendants had any valid defences to the claim for possession and, if not, whether summary judgment should be granted.

The court held that the defendants' defences did not disclose any defence to the claim for possession. The court found that the defendants were not entitled to redeem the mortgage, and that an intention to sell the property did not constitute an offer of redemption. Regarding the assignment of the mortgage, the court held that the assignment was validly perfected under sections 51 and 52 of the Real Property Act, and that no notice of assignment was necessary. The court also held that there was no requirement for the plaintiff to plead service of a section 57(2)(b) notice. As the defendants' defences did not disclose any defence to the claim for possession, the court granted summary judgment in favour of the plaintiff.

The court ordered that the defendants vacate the property and deliver possession to the plaintiff, and that the defendants pay the plaintiff's costs of the application for summary judgment. The court also ordered that the defendants pay interest on the amount owing under the loan agreement from the date of the judgment until the date of satisfaction. The court's decision provides guidance on the requirements for redemption of a mortgage, the effect of an assignment of a mortgage, and the circumstances in which summary judgment may be granted.

Orders