JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GE MORTGAGE SOLUTIONS LTD -v- MILOSESKI [2012] WASC 332 CORAM : MASTER SANDERSON HEARD : 23 AUGUST 2012 DELIVERED : 13 SEPTEMBER 2012 FILE NO/S : CIV 1969 of 2011 BETWEEN : GE MORTGAGE SOLUTIONS LTD Plaintiff
AND
STOJAN MILOSESKI
VERA MILOSESKA
Defendants
Catchwords:
Summary judgment on mortgage and possession of property - Turns on own facts
Legislation:
Nil
Result:
Judgment granted
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Category: B
Representation:
Counsel:
Plaintiff : Mr B C Smith
Defendants : Mr D G Taylor
Solicitors:
Plaintiff : Gadens Lawyers
Defendants : DTS Legal
Case(s) referred to in judgment(s):Nil
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1 MASTER SANDERSON: This was the plaintiff's application for summary judgment. The plaintiff sought to recover moneys outstanding under a mortgage over the defendants' property and an order for possession of that property. At the conclusion of the hearing, I made orders in terms sought by the plaintiff. I indicated I would publish reasons for that decision. These are those reasons.
2 At all material times, the defendants were the registered proprietors of certain property in Alexander Heights. On or about 6 October 2007, the plaintiff and the defendants entered into a written loan agreement pursuant to which the plaintiff lent to the defendants an amount of $365,500. Repayment of the loan was secured by way of a first registered mortgage over the Alexander Heights property.
3 By 25 February 2011, the defendants were in default under the loan agreement. On that day, a notice of default was issued requiring the defendants to rectify the default. The default was not rectified and the full amount of the loan was thereafter repayable. The loan has not been repaid and on that basis, the plaintiff sought judgment for the amount of the advance and an order for delivery up of possession of the Alexander Heights property.
4 The defendants did not deny the loan nor did they deny the circumstances of default. Nonetheless, they maintained the application for summary judgment ought be dismissed, with the matter going to trial. This argument was put on a number of different grounds.
5 First, it was said the summary judgment application was brought out of time. Based upon affidavits of service filed by the plaintiff, the second-named defendant was served on 10 June 2011 and the first-named defendant was served on 15 June 2011. As no appearances had been entered, on 5 January 2012, the plaintiff took out a summons for default judgment under O 62A. At the first return date of the summons, a solicitor appeared for the defendants and sought an adjournment. That was on 2 February 2012. The matter came on again on 1 March 2012 and was adjourned to 29 March 2012. An appearance was not filed until 1 March 2012. A defence was filed on 5 April 2012. The application for summary judgment was made on 13 June 2012.
6 It is the case there is no affidavit from the plaintiff explaining why there was a delay in making the application for summary judgment. Ordinarily, when an extension of time is sought, such an affidavit ought be provided. Nonetheless, there are two matters which satisfied me in this
(Page 4) case it was proper to grant an extension of time to bring the application without the need for an affidavit. First, this is a very clear case. After hearing argument from counsel for the defendants, I was satisfied there was no prospect of successfully defending the action. To require a fresh application to be brought would be in no-one's interests. It would increase costs without offering any benefit to the defendants.
7 Secondly, there has been over a period of time discussions between the plaintiff and the defendants and the parties' respective solicitors. At all times, the defendants were aware what was being put against them. There was nothing new in the summary judgment application. It could not be suggested they were led by the plaintiff to believe summary judgment would not be sought. 8 It was submitted on behalf of the defendants the named plaintiff was not the present holder of the mortgage. Alternatively (as I understand the submission), there was now another mortgage manager who, in the defendants' submission, ought be the proper plaintiff. The fact is this mortgage is in the name of the plaintiff, as is the loan agreement. There is nothing to suggest that some other party is the proper plaintiff. The fact is the present named plaintiff can give a good discharge of the mortgage if the amount of the loan is repaid. There is no merit in that submission. It was submitted the default notice was in some way deficient. The default notice appears as annexure BCS1 to the affidavit of Brian Cameron Smith sworn 12 July 2011. The amount claimed in the notice is $12,690.44. The date of the default notice was 25 February 2011 and the amount specified in the notice is said to be the arrears as at that date.
9 Appearing as annexure RS1 to an affidavit of Ritu Srivastava sworn 6 August 2012 is a copy of the plaintiff's loan account reconciliation in relation to the defendants' account. It shows on 21 February 2011 the defendants made a payment on account of the loan in an amount of $21,000. It also shows as at that date an amount of $12,276.14 was outstanding. The default notice referred to that amount, and added an amount of $414.30 for 'enforcement expenses', to give a total of $12,690.44. There is no error in the amount specified in the default notice.
10 It was further submitted on behalf of the defendants there was some form of agreement entered into between the first-named defendant and someone from the plaintiff's solicitors to the effect if the defendants paid $21,000 to the plaintiff in reduction of the amount outstanding on the loan, the plaintiff would cease legal action. The plaintiff disputes that any
(Page 5) such discussion took place and has filed affidavit material to that effect. But this being a summary judgment application, the version of facts most favourable to the defendants is to be assumed.
11 The circumstances of the conversation as put by the first-named defendant are so vague as to make it uncertain what, if anything, he has alleged was agreed. It is difficult to see how there could have been any contractual arrangement between the parties - there was no consideration for the alleged agreement. The summary judgment application cannot be resisted on that basis. 12 Nor, as was argued by counsel for the defendants, does any estoppel arise. It was argued as the defendants cashed in the second-named defendant's superannuation and paid $21,000 off the arrears that they had acted to their detriment based on a representation if the payment was made enforcement proceedings would not be maintained. But the defendants have not acted to their detriment. In paying off the $21,000, they reduced their indebtedness to the plaintiff. That is to their advantage. No estoppel can arise. Nor is there any basis for suggesting there has been misleading and deceptive conduct. The facts - even the version of the facts most favourable to the defendants - simply do not support such a conclusion.
13 In all the circumstances then, I was satisfied there ought be judgment for the plaintiff. I made orders in terms of the plaintiff's minute.