Montesa Investments Pty Ltd v Certane CT Pty Ltd

In the case of Montesa Investments Pty Ltd v Certane CT Pty Ltd, Montesa sought leave to adduce new evidence on appeal and to appeal against a possession order made by Certane. Montesa alleged unconscionable conduct by Certane in providing the Certane loan and sought to set aside the possession order and have the matter proceed to trial on pleadings and discovery. Certane, a part of the Australian Secure Capital Fund group, acts as custodian for funds or companies within the group and carries on business as a mortgage-secured lender. Montesa borrowed $319,714 from Certane, secured by a mortgage over a property. Montesa fell into default and Certane applied to the Supreme Court for an order for possession of the property. The court was required to decide whether Montesa could adduce new evidence on appeal, whether Montesa had a reasonably arguable counterclaim, and whether the possession order should be stayed pending the determination of the counterclaim. The court found that Montesa had failed to adduce sufficient evidence to establish a reasonably arguable case of special disadvantage and unconscionable conduct. The court also found that even if Montesa had established a reasonably arguable counterclaim, it was inevitable that the property must be sold and there was no reason to stay an order for possession pending the hearing and determination of the counterclaim. The appeal was dismissed.

The court granted Montesa an extension of time to institute the appeal, granted leave to appeal, and dismissed the appeal. The court will hear the parties as to costs and any other orders sought. The court held that Montesa had failed to adduce sufficient evidence to establish a reasonably arguable case of special disadvantage and unconscionable conduct, that Certane had a clear entitlement to possession of the property, and that even if Montesa had established a reasonably arguable counterclaim, it was inevitable that the property must be sold and there was no reason to stay an order for possession pending the hearing and determination of the counterclaim. The appeal was dismissed.