Hamafam Pty Ltd v Saadullah - [2007] NSWSC 818

CITATION: Hamafam Pty Ltd & Ors v Saadullah & Anor [2007] NSWSC 818

HEARING DATE(S): 18 June 2007

JUDGMENT DATE :
31 July 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: (1) The default judgment entered against the defendants on 28 November 2006 is set aside. (2) The writ of possession dated 28 November 2006 in respect of the subject property is set aside. (3) The defendants are to file and serve a defence to the statement of claim filed on 11 September 2006 by 4.00pm on 7 August 2007. (4) The costs of this application are to be costs in the cause. (5) The Court authorises the plaintiffs to begin fresh enforcement proceedings against the defendants in respect of the default under the mortgage without requiring a default notice to be given pursuant to s80(2) of the Consumer Credit Code. (6) The funds held in trust by the plaintiffs' solicitors pursuant to the order of this Court made on 23 March 2007 may be released to the plaintiffs. (7) The proceedings are stood over to the registrar's list at 9.00am on 14 August 2007 for further directions.

CATCHWORDS: MORTGAGE - Consumer Credit Code - default notice not given - default judgment set aside.

LEGISLATION CITED: Uniform Civil Procedure Rules
Consumer Credit Code
Contracts Review Act

CASES CITED: Jonsson v Arkway (2003) 58 NSWLR 451
Park Avenue Nominees v Boon [2001] NSWSC 700
Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104
Rafiqi v Wacai Investments Pty Ltd (1998) ASC 1550-024 (District Court, Qld)

PARTIES: Hamafam Pty Ltd (ACN 112 118 519) (4th Plaintiff)
Roger Julius Barsony (1st Plaintiff)
Deidre Lynn Love (2nd Plaintiff)
Keith Love (3rd Plaintiff)
Alfred Stricker (5th Plainiff)
Kuselis Levitas (6th Plaintiff)
Max Weidman (7th Plaintiff)
Robert Kremnizer (8th Plaintiff)
Margaret Mae Hipsley (9th Plaintiff)
Patricia Ruth Hipsley (10th Plaintiff)
Anwar Ahmad Saadullah (1st Defendant)
Zaimah Saadullah (2nd Defendant)

FILE NUMBER(S): SC 2006/14471

COUNSEL: T. Rogers (Plaintiffs)
R. Potter (Defendants)

SOLICITORS: R.L. Kremnizer & Co Solicitors (Plaintiffs)
Makinson & d'Apice Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Tuesday 31 July 2007

2006/14471 HAMAFAM PTY LIMITED & ORS v ANWAR AHMAD SAADULLAH & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 The defendants are the owners of a residential property at 11A Mears Avenue, Randwick, New South Wales. They reside there with their children.

2 The property is subject to a first mortgage to the plaintiffs. There is a second mortgage to Lawteal Seconds Pty Ltd. The defendants are in default under each mortgage.

3 The plaintiffs obtained default judgment against the defendants for possession of the property. The judgment was given and entered on 28 November 2006. Lawteal, in separate proceedings against the defendants, has sought an order for possession of the property. A defence was filed by the defendants in those proceedings. Those proceedings are yet to be heard.

4 The defendants, by notice of motion filed on 16 March 2007, sought various orders against the plaintiffs.…

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 Hamafam Pty Ltd v Saadullah 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: [2007] NSWSC 818
Decision Date: 31 July 2007

CaseChat Overview and Summary

Hamafam Pty Ltd v Saadullah is a case involving a dispute between a mortgagee, Hamafam Pty Ltd, and a mortgagor, Saadullah, concerning the enforcement of a mortgage over a property. The dispute was heard in the Supreme Court of Queensland. Hamafam sought to enforce a mortgage against Saadullah, claiming that he had defaulted on his mortgage payments. Saadullah contested the enforcement, arguing that the mortgagee had not given the required default notice before seeking to enforce the mortgage.

The legal issues before the court were whether the mortgagee was entitled to enforce the mortgage without providing a default notice and whether the failure to provide such a notice could result in the setting aside of a default judgment. The court had to determine whether the absence of a default notice affected the enforceability of the mortgage and whether it warranted the setting aside of a default judgment previously entered against Saadullah.

In its decision, the court held that the absence of a default notice did not invalidate the mortgage itself but could impact the mortgagee's right to enforce the mortgage. The court found that the failure to give a default notice could indeed lead to the setting aside of a default judgment. The court set aside the earlier default judgment and ordered that the matter be remitted for further consideration, ensuring that proper procedures were followed before any further enforcement actions were taken.

Orders