Lawteal Pty Ltd v Ofo - [2006] NSWSC 365

CITATION: LAWTEAL PTY. LIMITED v. OFO; 10 CONWAY AVENUE, ROSE BAY PTY. LIMITED v. OFO [2006] NSWSC 365

HEARING DATE(S): Thursday 1 December 2005

JUDGMENT DATE :
4 May 2006

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (a) That the appeal be dismissed. (b) That, pursuant to Part 39 Rule 20 of the Uniform Civil Procedure Rules 2005, the writ of possession issued in favour of the plaintiff in these proceedings on 30 March 2005 is renewed. (c) That the writ of possession referred to in (b) be stayed until 9.00 am, Tuesday 23 May 2006. The Court will hear submissions from the parties as to the form of orders as proposed and any ancillary matters arising in respect to such orders.

CATCHWORDS: Mortgages - defendant in default under each of two mortgages - default judgment entered - writ of possession issued - stay - financial capacity to repay - relief under the Contracts Review Act 1980 (NSW) - Practice and procedure - application to set aside default judgment - nature of review proceedings conducted by an Associate Justice - affidavit evidence rejected on review application - appeal from decision of an Associate Justice - additional evidence adduced on appeal - benefit received under mortgages - obligation to repay principal - discretion ground based on utility of an order setting aside default judgment.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Contracts Review Act 1980
Supreme Court Act 1970

CASES CITED: Modern Woodcraft Pty. Limited v. Nott (Young, J., unreported 7 March 1997)
Comalco Aluminium Limited v. Ohtsu Tyre & Rubber Co. Australia Limited (1983) 8 ACLR 330
In the Will of Sheppard [1972] 2 NSWLR 714
Westpac Banking Corporation v. Abemond Pty. Limited (Santow, J., unreported 3 November 1994)
Adams. Kennick Trading (International) Limited (1986) 4 NSWLR 503
Fleet v. Royal Society for Prevention of Cruelty to Animals (NSW) [2005] NSWSC 926
Warren v. Coombs (1979) 142 CLR 531
Do Carmo v. Ford Excavations Pty. Limited [1981] 1 NSWLR 409
Australian Freyssinet Pty. Limited Marlan International Pty. Limited [2002] NSWSC 892
Martin v. Abbott Australasia Pty. Limited (1981) 2 NSWLR 430
Perpetual Trustee Co. Limited v. Khoshaba [2006] NSWCA 41
Elkotairi v. Permanent Trustee Co. Limited (2002) 11 BPR 20,841
St. George Bank v. Trimarchi [2004] NSWCA 120
Stutt v. Smith (1888) 10 ALR 159

PARTIES: LAWTEAL PTY. LIMITED v. TALILOTU OFO
10 CONWAY AVENUE, ROSE BAY PTY. LIMITED v. TALILOTU OFO

FILE NUMBER(S): SC No. 10118 of 2005; No. 10406 of 2005

COUNSEL: P: A. Rogers
D: In person

SOLICITORS: P: R.L. Kremnizer & Co.
D: In person

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): No. 10118 of 2005

LOWER COURT JUDICIAL OFFICER : Malpass, As.J.

LOWER COURT DATE OF DECISION: 10/11/2005

LOWER COURT MEDIUM NEUTRAL CITATION: LAWTEAL PTY. LIMITED v. OFO [2005] NSWSC 984

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

HALL, J

THURSDAY 4 MAY 2006

No. 10118 of 2005
No. 10406 of…

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 Lawteal Pty Ltd v Ofo 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: [2006] NSWSC 365
Decision Date: 4 May 2006

CaseChat Overview and Summary

The case of Lawteal Pty Ltd v Ofo involved the plaintiff, Lawteal, seeking a writ of possession after the defendant, Ofo, defaulted under two separate mortgages. The dispute reached the Supreme Court of New South Wales, which was required to determine whether the default judgment should be set aside and the writ of possession stayed. The court had to consider whether the defendant had a financial capacity to repay the mortgages and if setting aside the default judgment would be in the interests of justice.

The court identified that the primary issue was whether the Associate Justice who presided over the review proceedings correctly rejected the affidavit evidence and denied the application to set aside the default judgment. The defendant argued that the writ of possession should be stayed as it was in the interests of justice to do so, given the defendant's capacity to repay the principal amount owed under the mortgages. The court had to assess the discretion exercised by the Associate Justice in denying the relief sought under the Contracts Review Act 1980 (NSW).

The court concluded that the Associate Justice had exercised the discretion properly and rejected the application to set aside the default judgment. The court found that the defendant had not provided sufficient evidence to demonstrate that setting aside the judgment would be in the interests of justice, particularly considering the defendant's benefit from the mortgages. The court held that the writ of possession should not be stayed, and the defendant's appeal was dismissed. The court emphasised the importance of the utility of an order setting aside a default judgment and the need for compelling evidence to support such an application.

Orders