GE Mortgage Solutions Ltd v Whild (No 2) - [2014] VSC 581

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

---

JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2014
DATE OF JUDGMENT:	18 November 2014
CASE MAY BE CITED AS:	GE Mortgage Solutions Ltd v Whild (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 581

---

PRACTICE & PROCEDURE – Substitution of plaintiff – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 9.09 – Summary judgment for substituted plaintiff with immediate effect, ss 61 and 63 Civil Procedure Act 2010.

---

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

HIS HONOUR:

Introduction and summary of conclusions

The plaintiff seeks orders that Permanent Custodians Ltd (‘PCL’) be substituted for the plaintiff, GE Mortgage Solutions Ltd (‘GEMSL’) and that various orders be made that would enable the entry of summary judgment for possession of 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 (‘Spotswood Property’).

The defendant seeks the production of documents evidencing the authority of Pepper Australia Pty Ltd (‘Pepper Australia’) to act on behalf of GEMSL and PCL.

For the reasons which follow the plaintiff is entitled to the relief it seeks and orders will be made substituting PCL for GEMSL and entering judgment for possession of the Spotswood Property.

Background

The background facts relating to the proceeding are set out in my earlier decision in GE Mortgage Solutions Ltd v Whild [2013] VSC 503. Although it is unnecessary to repeat that background, there are some matters that are important to an understanding of the present application which bear repetition, as follows.

The proceeding commenced in 2004, and relates to loans made by GEMSL to Ms Whild secured by properties owned by her. Ms Whild and GEMSL entered into two Loan Agreements in January 2004 (‘Loan Agreements’), the terms of which were set out in what is called the Home Loan Contract Terms and Conditions (‘Loan Terms’).[1]
[1]Exhibit AP-3 to the affidavit of Andrew Paterson sworn 13 February 2013.

The first of these loans, called ‘Loan A’, was for the sum of $304,000 and the second loan, called ‘Loan B’ was for the sum of $204,000. Both Loan A and Loan B were secured by a registered mortgage over two freehold properties, being the Spotswood Property and 71 Huntingfield Drive, Hoppers Crossing (‘Hoppers Crossing Property’). The mortgage was registered by the Land Titles Office in dealing number AC651596Q and incorporated Memorandum of Common Provisions No. AA706 (‘Mortgage’).

As a result of various events, both Loan A and Loan B were in arrears and, on this basis, GEMSL sent default notices (‘default notices’), for both Loans A and B separately, dated 1 April 2004, to Ms Whild. Ms Whild did not pay the…

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.

Keep reading for free

Create a free CaseChat account to read GE Mortgage Solutions Ltd v Whild (No 2) 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSC 581
Decision Date: 18 November 2014

CaseChat Overview and Summary

In this case, GE Mortgage Solutions Ltd, a financial institution, sued a borrower, Mr Whild, over a default on a loan. Mr Whild had defaulted on his mortgage payments, leading to GE Mortgage Solutions Ltd initiating legal action. The original plaintiff, GE Capital Australia Ltd, had assigned its claims to GE Mortgage Solutions Ltd. GE Mortgage Solutions Ltd then applied for substitution under the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and sought summary judgment. Mr Whild contested the substitution and opposed the summary judgment application.

The court had to determine whether GE Mortgage Solutions Ltd was entitled to substitute itself as the plaintiff in the proceedings and whether it was appropriate to grant summary judgment in its favour. The court considered whether the substitution complied with the procedural rules and whether there were any triable issues that would warrant a trial. The court also needed to assess whether the undisputed facts presented by GE Mortgage Solutions Ltd were sufficient to warrant the entry of judgment as a matter of law.

The court found that the substitution complied with the relevant rules, and there were no triable issues between the parties. The undisputed facts established that Mr Whild had defaulted on his mortgage obligations, and GE Mortgage Solutions Ltd had a valid claim for the outstanding amount. The court held that it was appropriate to grant summary judgment, allowing GE Mortgage Solutions Ltd to recover the outstanding debt immediately. The court emphasised that the assignment of claims and the substitution of parties were valid, and the undisputed facts supported the claim for summary judgment.

The court granted the application for substitution and entered summary judgment in favour of GE Mortgage Solutions Ltd. The judgment ordered Mr Whild to pay the outstanding amount, interest, and costs. The court also directed that the substituted plaintiff, GE Mortgage Solutions Ltd, would replace the original plaintiff in the proceedings, with all necessary amendments to be made. The court's decision affirmed the procedural correctness of the substitution and the merits of GE Mortgage Solutions Ltd's claim, providing a clear resolution to the dispute.

Orders