Eclipse Prudent Mortgage Corporation Ltd v Goorigubba Pty Ltd

[2014] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation:

Eclipse Prudent Mortgage Corporation Ltd v Goorigubba Pty Ltd [2014] NSWSC 1542

Hearing dates:

5 November 2014

Decision date:

05 November 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. I give leave under s 500(2) of the Corporations Act 2001 (Cth) to the Plaintiff to proceed against the Defendant in liquidation.

2. The Defence filed 29 August 2014 is struck out.

3. Judgment for the Plaintiff for possession of the property in Certificate of Title folio identifier 43/11427 known as 74 Couralie Avenue, Homebush West in New South Wales.

4. Leave to the Plaintiff to issue a writ to enforce the Judgment of the Court.

Catchwords:

REAL PROPERTY - possession of land - defendant placed into liquidation - no defence disclosed - liquidator not opposing judgment for possession - defence struck out - judgment entered

Legislation Cited:

Corporations Act 2001 (Cth

Category:

Principal judgment

Parties:

Eclipse Prudent Mortgage Corporation Ltd (Plaintiff)
Goorigubba Pty Ltd ( Defendant)

Representation:

Counsel:
M Pooley (Plaintiff)
P Beazley ( Defendant)
Solicitors:
Diamond Conway Lawyers (Plaintiff)
Beazley Singleton Lawyers ( Defendant)

File Number(s):

2014/85061

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 24 July 2014 seeking possession of land at 74 Couralie Avenue, Homebush West. The property had been mortgaged by the Defendant on 7 August 2012 and the principal sum secured under the mortgage was due to be repaid by 7 August 2013. The evidence discloses that the principal sum was not repaid on that date and that led to the commencement of the proceedings.

1. A defence was filed on 29 August 2014 which pleaded that the Defendant was not in breach of the mortgage or loan agreement; that the s 57(2)(b) Notice was invalid because there was no default under the mortgage; that the loan agreement and mortgage was not in arrears or default; and there was an allegation that the proceedings had been commenced at the insistence of a company called Ivory Loan Developments Pty Limited who had lodged a caveat on the property. It was suggested that the caveat was lodged for an improper purpose to purport to cause a default for the purpose of extorting money from the Defendant.

1. On 3 October 2014 the proceedings were adjourned because the Defendant indicated that it would be exchanging contracts to sell the land. The agreement noted by the Registrar was that the Defendant was to provide the Plaintiff with an unconditional exchange contract on or before 10 October providing for settlement on or before 21 November. It was also agreed that the Defendant would make interest payments to the Plaintiff without prejudice to the Plaintiff's rights. No unconditional contract was produced by 10 October 2014 or by any date.

1. On 22 October 2014 the Defendant went into voluntary liquidation. The liquidators have appeared this morning by a solicitor who does not oppose leave being granted for the Plaintiff to proceed against the Defendant and does not oppose possession of the land being granted to the Plaintiff.

1. The evidence clearly discloses that the loan secured by the mortgage was due to be repaid on 7 August 2013 and has not been repaid. The result is that paragraphs 1, 2 and 4 of the defence cannot stand in those circumstances. Paragraph 3, which asserts the lodging of the caveat and the improper purpose in bringing these proceedings, is a scandalous allegation, as that term is understood to apply to pleadings. Paragraph 3 will be struck out.

1. I am satisfied that the occupiers of the property have been duly served. There was no appearance of those occupiers when they were called this morning outside the Court, nor have they filed any application to be added as Defendants in the proceedings.

1. I am satisfied that the mortgage is in default by the failure to repay the principal sum.

1. I give leave under s 500(2) of the Corporations Act 2001 (Cth) to the Plaintiff to proceed against the Defendant in liquidation.

1. The Defence filed 29 August 2014 is struck out. There will be judgment for the Plaintiff for possession of the property in Certificate of Title folio identifier 43/11427 known as 74 Couralie Avenue, Homebush West in New South Wales. Leave is given to the Plaintiff to issue a writ to enforce the Judgment of the Court.

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Decision last updated: 07 November 2014