Lending 001 Pty Ltd v Dimarti - [2022] NSWSC 1136

Supreme Court

New South Wales

Medium Neutral Citation: Lending 001 Pty Ltd v Dimarti [2022] NSWSC 1136
Hearing dates: 25 August 2022
Date of orders: 25 August 2022
Decision date: 29 August 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Judgment for the plaintiff for possession of the land comprised in folio identifier 120/10707 being the land situated at and known as 43 Monterey St, Monterey NSW 2217.
2. The defendants are to pay the plaintiff’s costs.

Catchwords:
MORTGAGES AND SECURITIES - mortgages – rights and remedies of mortgagee – possession – plaintiff seeking summary judgment for possession of land – no dispute between parties that principal sum is owing under mortgage – substance of dispute is amount owing – plaintiff seeking possession and not any amount outstanding – judgment for plaintiff
CIVIL PROCEDURE – summary disposal – judgment for plaintiff – defences claimed predatory practices, relief under Contracts Review Act (CRA) and breach of National Credit Code – no material facts pleaded to support reliance on CRA and Code - repeated deficient pleading by debtors to particularise defences – whether summary judgment appropriate where defence relies on CRA - whether defences should be struck out – where no substantive defence demonstrated - plaintiff entitled to summary judgment

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 58
Consumer Credit (New South Wales) Code
Contracts Review Act 1980 (NSW) s 9
Conveyancing Act 1919 (NSW) s 12
National Credit Code
Real Property Act 1900 (NSW) s 57
Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 14.28, 15.3

Cases Cited:
Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208
Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116
Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74
Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87; [1983] HCA 25
Fitzgerald v Watson [2011] NSWSC 736
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Michalopoulos v Perpetual Trustees Victoria Limited [2010] NSWSC 1450
Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389

Texts Cited:
Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th Edition 2014 Lexis Nexis)

Category: Principal judgment
Parties: Lending 001 Pty Ltd (Plaintiff)
Carmelo Dimarti (First Defendant)
Margherita Dimarti (Second Defendant)
Representation:
Counsel:
P Silver (Plaintiff)
In person (First Defendant)
J Pope (Second Defendant)
Solicitors:
Summer Lawyers (Plaintiff)
Self-represented (First Defendant)
Pope & Spinks (Second Defendant)

File Number(s): 2022/17495
Publication restriction: Nil

Judgment

On 7 December 2020 the defendants mortgaged their property at 43 Monterey Street, Monterey to Oak Capital Mortgage Fund Ltd (“the lender”) to secure a loan of $1,643,113.00. Interest was payable at 15% per annum reducible to…

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: [2022] NSWSC 1136
Decision Date: 29 August 2022

CaseChat Overview and Summary

Lending 001 Pty Ltd instituted proceedings against Dimarti, seeking summary judgment for possession of a property secured by a mortgage. The central dispute was not whether the principal sum was owing under the mortgage, as both parties acknowledged this, but rather the amount that was still owing. The plaintiff aimed to obtain possession of the property, not an additional sum. The court had to determine if the plaintiff was entitled to summary judgment given the nature of the defences raised by the defendant.

The legal issues before the court were whether the defences of predatory practices, relief under the Contracts Review Act, and breach of the National Credit Code were substantiated by any material facts. The court assessed whether the defences were adequately pleaded and if there were any substantive defences presented. Additionally, the court considered whether the plaintiff was entitled to summary judgment in light of the defences raised and whether those defences should be struck out due to insufficient pleading.

The court found that the defences raised were not supported by any material facts, and the pleadings were repeatedly deficient in particularising the defences. The court held that the defendant had not demonstrated any substantive defence and was thus entitled to summary judgment. The court ruled that the defences should be struck out as they did not provide a substantive defence to the plaintiff's claim for possession.

The court ordered that judgment be entered in favour of the plaintiff, Lending 001 Pty Ltd, and granted possession of the property to the plaintiff. The court also ordered that the defendant's defences be struck out.

Orders