SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FIRST MORTGAGE CAPITAL PTY LTD v STANIFORD & ANOR
[2021] SASC 88
Judgment of Judge Dart a Master of the Supreme Court
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION
Loan to company - director's guarantee - directors give mortgage to secure guarantee - term of the loan expired - company defaults - mortgagee seeks possession - is there an arguable defence?
Held:
1. No arguable defence established.
2. Applicant entitled to order for possession.
Australian Securities and Investments Commission Act 2001 (Cth) s 12BF, s 12BI; National Consumer Credit Protection Act 2009 (Cth); Real Property Act 1886 (SA) Part 17, referred to.
Armour Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; Corporation of the Town of Moonta v Rodgers and Rodgers [1980] 26 SASR 143; Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; Russo v Buck & Ors [2006] SASC 380; Westpac Banking Corporation v Chadha [2012] SASC 223, considered.
FIRST MORTGAGE CAPITAL PTY LTD v STANIFORD & ANOR
[2021] SASC 88Civil
This is an application seeking an order for the possession of real property. It is made pursuant to Part 17 of the Real Property Act 1886 (“the Act”). The respondents are the registered proprietors of the subject property. The applicant is entitled to the order for possession.
Background
The respondents are the directors of Staniford Livestock Pty Ltd. On or about 13 September 2018 the company borrowed the sum of $220,796 from the applicant. The loan was for a term of 12 months. The respondents, in their capacity as directors of the company, gave a guarantee in respect of the company’s obligations. That obligation was secured by a mortgage given over their property at 388 Carey Gully Road, Carey Gully. It is a registered second mortgage.
At the end of the term the loan was not repaid. It appears that the loan may have been rolled over for a period of months. The principal and interest that accrued on the loan have not been repaid. On any view, the term expired more than a year ago. I assume the company is unable to make payment.
On or about 16 July 2020 the applicant served a demand on the respondents pursuant to the guarantee. The demand was not complied with. On or about 14 October 2020 relevant statutory notices were issued under the mortgage.
The terms of the loan were onerous. Interest accrued at the rate of 24% per annum. The interest rate doubled in the event of a default. The charging of such interest rates is not of itself unlawful.
It should be noted that the respondents took legal advice in relation to the transaction. A solicitor provided certificates in relation to the guarantee. No point is taken by the respondents in relation to the statutory notices. The primary issue in dispute appears to be…
Keep reading for free
Create a free CaseChat account to read First Mortgage Capital Pty Ltd v Staniford and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] SASC 88
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the applicant had established a prima facie case for possession, and whether the respondents had raised any arguable defence to the claim. Given that the loan was secured by a registered mortgage, and there was a default in repayment, the court needed to assess whether any defences presented by the respondents were sufficient to warrant a full hearing. The court found that the respondents had not provided any evidence to suggest that there was an arguable defence to the applicant's claim. The respondents had taken legal advice during the transaction and had not contested the statutory notices issued under the mortgage.
The court concluded that the applicant had established a prima facie case for possession. The respondents had failed to demonstrate any arguable defence to the claim, and the court was satisfied that the mortgage was duly registered and valid. The interest rates charged were lawful and did not invalidate the mortgage. Consequently, the court granted the applicant's application for an order for possession of the property. The order was made on the basis that there was money secured by the mortgage and that the respondents had defaulted on the repayment terms, triggering the right to possession.
Orders
Orders of the court
Loan to company - director's guarantee - directors give mortgage to secure guarantee - term of the loan expired - company defaults - mortgagee seeks possession - is there an arguable defence?
Held:
1. No arguable defence established.
2. Applicant entitled to order for possession.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.