Ge Mortgage Solutions Ltd v Escalante

[2012] WASC 377

GE MORTGAGE SOLUTIONS LTD -v- ESCALANTE [2012] WASC 377

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 377
Case No:	CIV:2088/2012	Heard:	2 OCTOBER 2012
Coram:	MASTER SANDERSON	Delivered:	10/10/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed Judgment for the plaintiff
Category:	A
PDF Version

Parties:	GE MORTGAGE SOLUTIONS LTD LAURENCE EMMANUEL ESCALANTE SARITA SACCHA IRVING FARRA (also known as SARITA SACHA ESCALANTE)
Catchwords:	Mortgage actions Entitlement of lender to judgment when compliance with O 62A Appeal from decision of a registrar to adjourn application
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GE MORTGAGE SOLUTIONS LTD -v- ESCALANTE [2012] WASC 377 CORAM : MASTER SANDERSON HEARD : 2 OCTOBER 2012 DELIVERED : 10 OCTOBER 2012 FILE NO/S : CIV 2088 of 2012 BETWEEN : GE MORTGAGE SOLUTIONS LTD

Plaintiff

AND

LAURENCE EMMANUEL ESCALANTE
SARITA SACCHA IRVING FARRA (also known as SARITA SACHA ESCALANTE)
Defendants

Catchwords:

Mortgage actions - Entitlement of lender to judgment when compliance with O 62A - Appeal from decision of a registrar to adjourn application

Legislation:

Nil

Result:

Appeal allowed

Judgment for the plaintiff

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Mr B C Smith
Defendants : No appearance

Solicitors:

Plaintiff : Gadens Lawyers
Defendants : No appearance

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 MASTER SANDERSON: This was an appeal from a decision of a registrar. On 25 June 2012 the plaintiff issued proceedings seeking repayment of a loan secured over the defendants' property. The plaintiff alleged the defendants defaulted under the terms of the loan and did not rectify the default when a notice was served requiring them to do so. The plaintiff alleged in the circumstances that they were entitled to call for the repayment of the loan and delivery up of the mortgage property. The defendants did not enter an appearance to the writ and on 20 August 2012 the plaintiff issued a chamber summons seeking leave to enter default judgment under O 62A r 2 of the Rules of the Supreme Court 1971 (WA).

2 When the matter came on for hearing on 4 September 2012 the learned registrar made the following orders:

1. The application for judgment in default of appearance be adjourned to Tuesday, 6 November 2012 at 9.30 am.

2. The costs of the day be in the cause.

3 There was no transcript of the hearing before the learned registrar available. However the plaintiff relied on an affidavit of Cassandra Michelle Guy sworn 6 September 2012. Ms Guy appeared before the learned registrar on the application for judgment. Ms Guy says the learned registrar refused to give leave to enter default judgment because the evidence established the defendants were not more than a few hundred dollars in arrears on the mortgage. The learned registrar said to enter judgment would adversely affect the defendants' credit rating when they were effectively maintaining the mortgage. According to Ms Guy the learned registrar acknowledged there had been a failure to comply with the default notice and there appeared to be no impediment to the plaintiff obtaining judgment.

4 After hearing argument I allowed the appeal. I indicated I would publish reasons for my decision. These are those reasons.

5 Order 62A provides a code in relation to what are described as 'mortgage actions'. What is required is the holder of a mortgage comply with the requirements of O 62A r 2 and r 3. A lender who complies with these two rules and is able to satisfy the registrar all proper and appropriate steps have been taken to ensure the borrower is liable for the amount claimed, is entitled to possession of the mortgaged property.

6 It is not for a registrar or a master or a judge to take a position as to the appropriateness or otherwise of a lender seeking to enforce its

(Page 4)

remedies. The parties have entered into a commercial contract pursuant to which they have rights and liabilities. A lender whose right has accrued because of a breach of the terms of the loan agreement is entitled to enforce its remedies. That was the case here. There was no warrant for adjourning this matter. The plaintiff was entitled to its judgment and it should have had it.