GE Mortgage Solutions Ltd v Whild - [2013] VSC 503

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2004 07145

GE MORTGAGE SOLUTIONS LIMITED (ACN 070 797 894)	Plaintiff
v
SUSAN IRENE WHILD	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2013
DATE OF JUDGMENT:	18 September 2013
CASE MAY BE CITED AS:	GE Mortgage Solutions Ltd v Whild
MEDIUM NEUTRAL CITATION:	[2013] VSC 503

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MORTGAGES — Mortgagee’s right to recover possession — Previous determination of validity of Notice of Default — Whether provision for late charge fee a penalty — Whether penalty affects validity of default notice served — Whether issue estoppel arising from VCAT proceedings preventing reliance on penalty point — Default notice valid and plaintiff entitled to possession.

PRACTICE & PROCEDURE — Summary Judgment — test for s 63 Civil Procedure Act 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Hay	Gadens Lawyers
For the Defendant	Mr D C Turner	George Liberogiannis & Associates

HIS HONOUR:

Introduction

By summons filed 18 February 2013, the plaintiff (“GEMSL”) seeks summary judgment against the defendant (“Ms Whild”) pursuant to ss 61 and 63 of the Civil Procedure Act2010 (Vic) and/or pursuant to r 22.02 of the Supreme Court (General Civil Procedure) Rules2005. The application is for judgment for possession of the land situate at and known as 12 Strong Street, Spotswood, Victoria, being the whole of the land comprised in Certificate of Title volume 02073 folio 414. There is no claim for any debt or other sum due.

The application is supported primarily by the affidavit of Andrew Paterson sworn 13 February 2013, to which Ms Whild responded by affidavit sworn 28 March 2013. On the day of the hearing of the application, the plaintiff sought to file a supplementary affidavit in support of Annette Leigh Gaber sworn 3 April 2013. The latter affidavit merely exhibited points of claim and defence in a proceeding in the Victorian Civil and Administrative Tribunal (“VCAT”) to provide a foundation for an issue estoppel, as I shall relate.

In addition to these affidavits, there are affidavits in support of, and in opposition to, an earlier application for summary judgment filed on 11 May 2006.[1] That application was dismissed by consent on 5 February 2007.
[1]The affidavits are by Malcolm Renneboogh sworn 26 April 2006, Kathy Tilling sworn 21 April 2006 and Ms Whild sworn 1 November 2006.

Background facts
Procedural background

The proceeding has a long and tortuous history. It commenced in 2004, and relates to loans made by the plaintiff to the defendant secured on properties owned by her. The proceeding was stayed for a considerable period whilst proceedings in VCAT and on appeal were dealt with.[2]
[2]Order of Master Evans made 11 December 2008.

The VCAT proceedings were commenced on 23 May 2008,[3] heard before Senior Member C McKenzie between March and September 2010 and resulted in orders made on 31 March 2011. Ms Whild’s application in…

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.

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Details

Case: [2013] VSC 503
Decision Date: 18 September 2013

CaseChat Overview and Summary

In the case of GE Mortgage Solutions Ltd v Whild, the plaintiff sought a declaration of entitlement to possession of residential premises and an order for summary judgment under the Civil Procedure Act 2010. The dispute arose out of a mortgage agreement where the plaintiff claimed that the borrower had defaulted on their obligations. The matter was heard and determined by the Supreme Court of Victoria.

The central legal issues before the court were whether the provision for a late charge fee constituted a penalty, and if so, whether that affected the validity of the default notice served by the plaintiff. Additionally, the court had to consider whether an issue estoppel arising from previous VCAT proceedings prevented the plaintiff from relying on the penalty point to challenge the validity of the default notice.

The court found that the late charge provision did amount to a penalty, but this did not affect the validity of the default notice because the notice itself was not contingent on the payment of the penalty. The court also ruled that there was no issue estoppel preventing the plaintiff from asserting the penalty point. As a result, the default notice was held to be valid, and the plaintiff was entitled to possession of the property. The court granted the plaintiff’s application for summary judgment, determining that there was no real prospect of the defendant succeeding in its defence.

Orders