Davis v Healey - [2019] NSWSC 820

Supreme Court

New South Wales

Medium Neutral Citation: Davis v Healey [2019] NSWSC 820
Hearing dates: 11 June 2019
Date of orders: 03 July 2019
Decision date: 03 July 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendant’s amended notice of motion filed 4 April 2019 is dismissed.
(2) The defendant is to pay the plaintiff’s costs on an ordinary basis.
Catchwords: PRACTICE AND PROCEDURE - Application to set aside consent orders - Default of mortgage - Whether a subsequent deed superseded the mortgage - Whether agreement was the varied agreement
Cases Cited: Angus v Salier [2015] NSWSC 1446
Category: Procedural and other rulings
Parties: Constance Davis (Plaintiff)
Ralph Stewart David Healey (Defendant)
Representation:
Counsel:
P O’Loughlin (Plaintiff)
Solicitors:
Merrick Spicer and Associates (Plaintiff)
Self Represented (Defendant)

File Number(s): 2018/80046
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 4 April 2019, the defendant seeks to have the consent orders agreed upon by both Merrick Spicer and Stephen Dodd on 13 November 2018 and filed in the Supreme Court on 19 November 2018 set aside. The plaintiff opposes the orders sought.
The plaintiff is Constance Davis. The defendant is Ralph Stewart David Healey. The plaintiff relied upon her affidavits dated 23 October 2018, 26 April 2019 and 29 May 2019 and two affidavits of her solicitor Merrick James Spicer dated 23 October 2018 and 24 April 2019. The defendant replied upon his affidavits dated 21 February 2019 and 3 April 2019. There was no cross examination.
The plaintiff was represented by counsel. The defendant was self-represented.

The procedural history

By statement of claim filed 6 March 2018, the plaintiff commenced proceedings against the defendant seeking possession of the property at Woodford (“the Woodford property”) on the basis that the defendant had defaulted in payment of the mortgage. No appearance or defence was filed.
On 23 March 2018, the defendant was served with the statement of claim. On 6 July 2018, an order for possession was made. On 19 September 2018, the defendant was notified that vacation of the property was required by 14 November 2018. On 17 October 2018, the defendant filed a notice of motion seeking a stay of execution. On 24 October 2018, this notice of motion was dismissed. The defendant says that he explained to this Court that at the time this motion came on for hearing, he did not have a copy of the deed of acknowledgement and debt of loan, and both the plaintiff and her solicitor had relied on affidavit evidence to the effect that such a document did not exist. The defendant now has a copy of that document.

This motion

There are three documents relevant to the hearing of this notice of motion. They are firstly, the mortgage dated 22 September 2016 (Ex 1); secondly, a deed of acknowledgement of debt and loan dated December 2016 (“the deed”); and finally, the short minutes of order filed in this Court on 16 May 2018…

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 Davis v Healey

Details

AGLC: Davis v Healey [2019] NSWSC 820
Case: [2019] NSWSC 820
Decision Date: 03 July 2019

CaseChat Overview and Summary

In the case of Davis v Healey, the applicant sought to set aside consent orders related to a default under a mortgage. The court was required to determine whether a subsequent deed had superseded the original mortgage and if the agreement in question was the varied agreement. The primary dispute revolved around the interpretation of the documents and the intentions of the parties involved.

The central legal issue was whether the subsequent deed was intended to supersede the original mortgage, effectively extinguishing the security interest created by the mortgage. Additionally, the court had to ascertain whether the agreement referred to in the consent orders was indeed the varied agreement between the parties. This required an analysis of the terms of both the original mortgage and the subsequent deed, as well as the circumstances surrounding their execution.

The court found that the subsequent deed did not supersede the original mortgage, as there was no clear intention to do so. The language used in the deed did not unequivocally indicate an intent to extinguish the security interest created by the mortgage. Furthermore, the court determined that the agreement referred to in the consent orders was not the varied agreement between the parties. Instead, it was a different agreement, which led to the conclusion that the consent orders should be set aside.

As a result of the court's findings, the consent orders were set aside, and the case was returned to the parties for further proceedings to determine the true nature of the agreement and the rights and obligations of the parties under the mortgage. This decision highlights the importance of clear and unequivocal language in legal documents to ensure that the intentions of the parties are accurately reflected.

Orders