National Australia Bank v Ho - [2006] NSWSC 1000

NEW SOUTH WALES SUPREME COURT

CITATION: NATIONAL AUSTRALIA BANK v. HO [2006] NSWSC 1000

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): No. 11760 of 2006

HEARING DATE{S): Thursday 21 September 2006

DECISION DATE: 21/09/2006
EX TEMPORE DATE: 21/09/2006

PARTIES:
NATIONAL AUSTRALIA BANK
v. HO, Ruby Miu Yee

JUDGMENT OF: Hall J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Plaintiff: M. Elliott
Defendant: In person

SOLICITORS:
Plaintiff: Mallesons Stephen Jaques
Defendant: In person

CATCHWORDS:

ACTS CITED:

DECISION:
Judgment in favour of the plaintiff against the defendant for possession of the whole of the land comprised in CT folio identifier 72/654534, 68 Duntroon Avenue, Roseville. Leave to the plaintiff to issue a writ of possession. Leave to issue writ of possession is stayed for a period of 28 days. The defendant is to pay the plaintiff's costs of and incidental to the proceedings.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HALL, J.
THURSDAY 21 SEPTEMBER 2006
No. 11760 of 2006
NATIONAL AUSTRALIA BANK LIMITED v. RUBY MIU YEE HO (ALSO KNOWN AS RUBY MIU LEE FURNELL)
JUDGMENT

HIS HONOUR: In these proceedings, the plaintiff, by way of Statement of Claim filed on 13 April 2006, sought orders against the defendant as follows:
(a)Judgment for possession for the whole of the land comprised in Certificate of Title described in paragraph 1 of the statement of claim and known as 68 Duntroon Avenue, Roseville in the State of New South Wales
(b) Leave to issue a writ of possession to enforce a judgment.
(c)Costs.
The defendant filed a defence on 24 May 2006.
On 25 August 2006, Rothman, J. made orders and directions, including an order that the plaintiff file an amended statement of claim. He granted liberty to the defendant to file and serve an amended statement of defence by 11 September 2006. His Honour stood the notice of motion over until 15 September 2006 before the duty judge. The proceedings were listed before the duty judge last week, but time did not permit him to deal with the matter and, accordingly, the proceedings were adjourned and in due course were listed in the registrar's list today. The proceedings were then listed before me.
Mr. M. Elliott of counsel appears on behalf of the plaintiff and Ms Ho, the defendant, appears unrepresented.
Pursuant to the directions given by Rothman, J., an amended statement of claim was filed on 29 August 2006 and the defendant filed an amended defence on 11 September 2006.
The plaintiff, previously, on 15 August 2006, had filed a notice of motion, which Rothman, J. stood over, in which orders were sought as set out in paragraph one, which again sought judgment for possession of the property and leave to issue a writ of possession in respect of the land described and, alternatively, sought an order that the defence filed on 24 May 2006 be struck out.
It is necessary to, firstly, deal with the contractual arrangements that existed between the parties relevant to these proceedings and to then refer to the events relevant to the proceedings.
On 29 December 2003, a mortgage was entered into between the plaintiff and the defendant as mortgagor. I will shortly refer to the home mortgage memorandum conditions that are relevant to the proceedings. A term loan facility agreement was entered into on 19 December 2003 in respect of a facility agreement, which provided for a total facility limit of $600,000, the mortgaged property identified is the property to which I have referred.
The only sworn evidence in these proceedings is the evidence called on behalf of the plaintiff, being the affidavits of James Wallace Wyatt sworn on 14 August 2006 and 24 August 2006. Mr. Wyatt was not required for cross-examination. He attaches to his affidavit sworn on 24 August 2006 the agreement said to be the agreement relating to the overdraft facility bearing the date 26 November 2004, signed on behalf of the plaintiff by the relationship manager, Mr. Holland.
Mr. Elliott of counsel drew my attention to the fact that the agreement did not bear the signature of the defendant but referred to the last paragraph in the overdraft agreement page 13, which reads:-
"The facility will be available seven days from the date of offer below or any earlier date agreed by you and the bank. Your first use of your account after the relevant date will be taken as your acceptance of the offer contained in this agreement."
Mr. Wyatt, in his affidavit sworn 14 August 2006, paragraph six, stated that the plaintiff did provide financial accommodation to the defendant, the defendant objecting to that term "financial accommodation" but, in any event, confirming that a facility termed a business secured overdraft facility became operative as recorded in account number 57-747-7874 in the sum of $20,000 in the terms set out in the business secured agreement dated 26 November 2004.
The agreement records on page four under the heading of "Securities", "security given is a registered mortgage over the property". It records the Certificate of Title Folio Identifier number as given by the defendant.
The plaintiff relies upon the provisions of s.5 on pp.7 and 8 of the terms and conditions of the overdraft facility agreement for establishing its right or entitlement to cancel the draft facility at any time. On the top of page eight there is provision made that "the bank may cancel the facility at any time whether or not you are in breach of this agreement". It goes on to provide:-
"Where the facility is cancelled:-
(a)the bank will give you notice of the cancellation as soon as practical, indeed the facility limit will reduce to zero
…
(c)you must pay any unpaid monies or any other money owing agreed to in this facility.”
Those provisions are key provisions in this matter.
Mr Elliott referred me to some relevant provisions in the terms of the mortgage conditions. In the exhibit to Mr. Wyatt's affidavit sworn 14 August 2006, it contains, behind tab two, a copy of the relevant provisions. My attention has been drawn to them by Mr Elliott, in particular Clause 19, which provides that the defendant will be in default if “(a) you do not pay the amount owing when due for payment".
It is important to observe the meaning prescribed to various expressions and terms in paragraph 31 of the conditions, to which I will shortly turn. Clause 20.1 provides that, in the event of default for more than one day, the bank having given a default notice allowing a period of 31 days from the day of notice to remit the default, then subject to the other conditions stated, the whole of the amount owing becomes payable on demand. If the bank demands payment of the amount owing, but it is not paid within seven days, the bank may enforce this mortgage by doing one or more of the matters set out in subclauses (d) to (g) inclusive.
In Clause 31, it is stated that:-
"Agreement covered by this mortgage means:-
(a)an agreement between one or more of you and the bank which all of you acknowledge in writing to be covered by this mortgage, and
(b) each agreement which varies such an agreement".
It then provides a definition of "amount owing" meaning:-
"… at any time, subject to 28.2(a), all money which one or more of you owe the bank, or will or may owe the bank in the future, and which by law may be secured by this mortgage, including;-
(a)under an agreement covered by this mortgage".
An agreement covered by the mortgage includes the overdraft agreement to which I have referred.
The mortgage, accordingly, was operative in respect of both the term loan facility and the overdraft agreement.
I turn to consider the relevant events. The events are established in the affidavits of Mr. Wyatt. It is unnecessary for me formally here to set out in detail all of the evidence which Mr. Wyatt in particular sets out in the first of those two affidavits.
The documents in Exhibit JWW 1, to which I have referred includes, behind Tab 4, a copy of a notice sent by the plaintiff dated 1 December 2005 in respect of the defendant identifying the business secured overdraft facility dated 26 November 2004. That refers to the unpaid balance in the amount of $24,174.87 as the balance together with costs.
The notice advised the defendant, amongst other things, that the plaintiff thereby provided notice of the cancellation of the facility. In paragraph nine of Mr. Wyatt's first affidavit, he states that the defendant failed to pay in accordance with the cancellation notice of 1 December 2005, to which I have referred.
On 14 December 2005, the plaintiff also served a notice of default on the defendant, a copy of which is behind Tab 5 in Exhibit JWW 1. It identifies the default as having failed to pay the amount demanded in the cancellation notice dated 1 December 2005 and identified the balance of the facility owing as of 14 December 2005. It is necessary to consider these notices in terms of the provisions of the mortgage to which I have earlier referred, in particular, the provisions in Clauses 19 and 20.1.
On or about 20 March 2006, the plaintiff served a notice stating that the defendant had failed to pay the amount owing on her facility identified in accordance with the Default Notice dated 8 March 2006. It identified the total amount owing as $600,368.87. The defendant disputed that figure and claimed it was wrong and that that invalidated the notice. However, the plaintiff in that respect seems to have relied upon Exhibit 5, being a copy of the account balance summary which provides a balance owing, as of 22 March 2006, of$ 596,604.71. However, Mr. Wyatt, in his affidavit of 24 August 2006, paragraph five, stated that the total amount owing in the demand of 20 March 2006 was made up of principal and interest, the interest having accrued in accordance with the terms of the facility since 1 March 2006.
Mr. Wyatt was not cross-examined on his affidavit, as I have stated, and it is necessary in those circumstances to accept his evidence and that the amount stated in the notice of 20 March 2006 was therefore correctly recorded.
I should also add that the defendant sought to rely in some way upon Exhibit 8, which is a copy of a letter sent to the plaintiff referring to the amount to be deposited or transferred. I am unable to see how that can detract from the plaintiff's rights stated in the contractual arrangements in the mortgage, to which I have referred.
Mr. Wyatt does record in his affidavit of 14 August 2006 the various amounts received from the defendant between 28 March and 10 April 2006 and he stated that the defendant failed to pay the remainder of the amount demanded in the notice, which is referred to in paragraph 18 of his affidavit.
The plaintiff does not rely upon any default in terms of repayments due and owing under the term loan, for it relies upon the rights under the mortgage by reason of the default that has occurred in relation to the overdraft agreement, that agreement, as I have said, being linked to the mortgage provisions.
Accordingly, it seems to me that the plaintiff has satisfied the requirements under Clauses 19 and 20 of the mortgage, and on that basis it is entitled to the relief sought.
The defendant did not, to my mind, establish by evidence or in her submissions any other affirmative or substantive defence, it being very difficult to comprehend precisely what was intended to be raised by her in the amended defence.
I turn to consider the question of what orders ought to be made. It does seem to me that any orders made should be made subject of a stay for a period of 28 days. Mr. Elliott quite fairly and frankly concedes that the discretion to do so does exist.
Accordingly, I make the following orders:-
(a)Judgment in favour of the plaintiff against the defendant for possession of the whole of the land comprised in the certificate of title folio identifier 72/654534 also known as 68 Duntroon Avenue, Roseville in the State of New South Wales.
(b)Leave to the plaintiff to issue a writ of possession to enforce the judgment.
(c)That the leave granted in terms of order (b) be stayed for a period of 28 days.
(d)The defendant pay the plaintiff's costs of and incidental to the proceedings.

I should record, in relation to the stay to which I have referred and ordered, the period of 28 days would provide the defendant with the opportunity of obtaining evidence of either an unconditional approval of a loan for refinancing purposes or a conditional approval of a loan with documentary evidence demonstrating her ability to comply with any conditions that may be placed on her in such loan approval.
An application has been made that the costs should be paid on a solicitor/client basis. Reliance is placed on the contractual entitlement of the plaintiff. However, I do not consider that I should order costs on a solicitor/client basis, there being nothing in my view which would be properly characterised as sufficiently extraordinary to warrant such an order for costs.

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LAST UPDATED: 28/09/2006