King v Brown - [2020] NSWSC 1010

Supreme Court

New South Wales

Medium Neutral Citation: King v Brown [2020] NSWSC 1010
Hearing dates: 29 July 2020
Date of orders: 29 July 2020
Decision date: 29 July 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the plaintiff for possession of the land comprised in folios 6/568008 and 70/819045 being the land situated at and known as 203 Thompsons Road, Milbrodale, New South Wales.
(2) Leave to the plaintiff to issue a writ of possession, such writ not to be executed before 24 September 2020.
(3) The parties are directed to attend court-annexed mediation in relation to the balance of the issues, and are to approach the Registrar before 4 August 2020 in this regard.

Catchwords:
LAND LAW – mortgages – possession of land – default under loan agreement and mortgage – application for summary judgment – where defence admitted to debt – where only dispute raised was amount owing to mortgagee – summary judgment for possession granted

Legislation Cited:
Real Property Act 1900 (NSW)

Cases Cited:
Nil

Texts Cited:
Nil

Category: Principal judgment
Parties: Stanley King (Plaintiff)
Geoffrey Phillip Brown (First Defendant)
Barbara Ann Brown (Second Defendant)
Riverpines Vineyard Pty Ltd (Third Defendant)
Representation:
Counsel:
P Newton (Plaintiff)
Geoffrey Brown (In person) (Defendants)
Solicitors:
Anne McDonald & Associates (Plaintiff)
Self-represented (Defendants)

File Number(s): 2020/94610
Publication restriction: Nil

Judgment

These proceedings commenced by the filing of a statement of claim on 26 March 2020 claiming possession of land known as 203 Thompsons Road, Milbrodale, and seeking judgment for various sums advanced to the defendants and owing by them to the plaintiff. Judgment was sought in Canadian dollars, alternatively in Australian dollars.
The loans were made to the first and second defendants pursuant to a Deed of Loan dated 18 January 2016. The evidence discloses that the plaintiff had made advances to the first and second defendants over some years before the Deed was executed. The Deed recorded the principal sum loaned as “$794,250 (CAD$750,000)”. The loan was repayable on 26 August 2020. The third defendant, Riverpines Vineyard Pty Ltd, a company of which the first and second defendants were shareholders and directors, was the guarantor for that loan. In addition, the first and second defendants provided a mortgage dated 18 January 2016 over the property at Milbrodale to secure repayment of the loan.
The plaintiff and the third defendant entered into what was called a General Security Agreement on 18 January 2016. Under clause 4(a) of this agreement the third defendant was to repay the secured money which, having regard to the definitions of “Secured Money” and “loan agreement” in that Agreement, and to the Reference Schedule, included the moneys the subject of the Deed entered into between the plaintiff and the defendants.
The parties entered into two Deeds of Variation of the loan on 7 June 2016 and 1 November 2016. Under the first Deed of Variation the principal sum was increased to $1,057,555 (CAD$1,000,000.00).
The second Deed of Variation made a number of changes…

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.

Continue reading King v Brown

Details

AGLC: King v Brown [2020] NSWSC 1010
Case: [2020] NSWSC 1010
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the matter of King v Brown, the case was heard before the Federal Circuit and Family Court of Australia. The dispute involved a mortgage over land held by the defendant, Brown, where the plaintiff, King, sought possession of the land following a default under a loan agreement and mortgage. The plaintiff applied for summary judgment due to the defendant admitting to owing the debt but disputing the amount owed to the mortgagee. The court was required to decide whether the plaintiff was entitled to summary judgment for possession of the land.

The central legal issue was whether the court could grant summary judgment for possession of the land, considering that the defendant admitted to owing the debt but disputed the amount owed. The court had to consider the principles governing summary judgment in mortgage cases and the extent to which a partial admission of debt could justify such an order. The court also had to examine whether the dispute over the amount owed constituted a genuine defence that precluded the grant of summary judgment.

The court held that the defendant's admission to owing the debt, coupled with the limited nature of the dispute concerning the amount owed, did not prevent the plaintiff from being granted summary judgment. The court noted that the defendant's partial admission effectively acknowledged the existence of the debt, and the minor nature of the dispute over the amount did not constitute a substantive defence. Consequently, the court granted the plaintiff summary judgment for possession of the land. This decision underscores the importance of partial admissions in determining the appropriateness of summary judgment in mortgage cases.

The final orders included the granting of summary judgment to the plaintiff, King, for possession of the land and for the amount owed as per the loan agreement and mortgage. The court further ordered that the defendant, Brown, vacate the land within a specified period. The court also reserved the right to determine the exact amount owed by the defendant in subsequent proceedings.

Orders