Community & Corporate Lifesavers Pty Ltd v Rodney William Norris

[2022] NSWSC 1428

Supreme Court

New South Wales

Medium Neutral Citation:

Community & Corporate Lifesavers Pty Ltd v Rodney William Norris [2022] NSWSC 1428

Hearing dates:

20 October 2022

Date of orders:

20 October 2022

Decision date:

20 October 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the Plaintiff for possession of the land described in folio identifier 3/SP78153 being the land situated at and known as Unit 3 38-42 Wynyard Street Guildford in the State of New South Wales.

2. Leave to the plaintiff to issue a writ of possession, such writ not to executed prior to 1 December 2022

Catchwords:

LAND LAW – possession of land – default under mortgage – where default admitted – where defence discloses no defence to the claim for possession

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Community & Corporate Lifesavers Pty Ltd (Plaintiff)
Rodney William Norris (Defendant)

Representation:

Counsel:
P Silver (Plaintiff)
In person (Defendant)

Solicitors:
Summer Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s):

2022/199777

Publication restriction:

Nil

Judgment

1. The plaintiff entered into a loan agreement with a company called MG Norris & Associates Pty Ltd on 28 January 2022 for a loan of $340,300. The guarantor of the company's obligations under the loan agreement was the defendant who was the sole director of the company.

2. A mortgage was entered into on the same date to secure the loan. The defendant was the mortgagor. The term of the loan was three months from the date of the agreement, so that the loan was due to be repaid on 28 April 2022. Two advances were made, one on 28 January in an amount of $196,400 and one on 25 February for $155,487.60.

3. The loan was not repaid on 28 April or at all. Demand was made on 9 May 2022 and that was not answered.

4. The plaintiff filed these proceedings on 8 July 2022 seeking judgment for possession of the land identified in the mortgage, being unit 3 at 38-42 Wynyard Street, Guildford.

5. On 29 August 2022, the defendant acting for himself filed a defence. He set out in the section of the defence heading "Pleadings and Particulars", a number of personal difficulties that he had had which caused him to be unable to repay the loan when it was due and thereafter.

6. The plaintiff then filed a motion on 9 September 2022 seeking, in the first instance, that the defence be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW); in the alternative that summary judgment be given for the plaintiff. That notice of motion is supported by an affidavit of Paul William Stone of 9 September 2022. Mr Stone is the director of the plaintiff.

7. The plaintiff subsequently advised that, at the hearing of the notice of motion, the plaintiff would be seeking an order for summary judgment.

8. The matter came to me as the Possession List Judge and I indicated that I would deal with the motion on 29 September this year. That day was not suitable to the defendant because he had a medical appointment that day. In the circumstances, the hearing of the motion was adjourned to today.

9. The defendant has appeared again in person. He has again outlined the difficulties that he has had and says that he has spoken to someone to organise a loan which he hopes will be available within the next 30 or 40 days, perhaps. No documentary evidence has been provided of any finance applications nor of any offers of finance. He effectively sought an adjournment to give him more time to organise finance.

10. The plaintiff, in the face of the defendant's defence and the defendant's acceptance that he owes the plaintiff the money, seeks to proceed on the notice of motion.

11. The plaintiff establishes, in the evidence of Mr Stone, that the loan and mortgage was entered into; that the advances were made; and that the money has not been repaid, a matter which, as I have said, the defendant accepts. The defendant does not point to any other defence to the claim for possession.

12. In those circumstances, the plaintiff is entitled to summary judgment for possession of the land.

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Decision last updated: 20 October 2022