Noble Solutions v Young - [2013] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation: Noble Solutions v Young [2013] NSWSC 1371
Hearing dates: 06/09/2013
Decision date: 06 September 2013
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Order to be made for judicial sale. Plaintiff not to recover costs of prior application nor of affidavits that did not comply with the rules. Plaintiff to bring in draft orders.

Catchwords:
REAL PROPERTY - mortgages and securities - mortgages - remedies of mortgagee - judicial sale
COSTS - wasted costs - not to be allowed - affidavits did not comply with UCPR - costs not to be allowed
Legislation Cited: Conveyancing Act 1919 (NSW)
Category: Procedural and other rulings
Parties: Noble Solutions Pty Ltd (Plaintiff)
Brian Andrew Young (First Defendant)
Suzanne Gray Young (Second Defendant)
National Australia Bank Limited (Third Defendant)
Representation: Counsel:
ML Davies (Plaintiff)
Solicitors:
Bransgroves (Plaintiff)

File Number(s): 2013/84133

Judgment (EX TEMPORE - REVISED 6 SEPTEMBER 2013)

HIS HONOUR: The plaintiff seeks judgment for possession of land at Fletcher in the state of New South Wales and orders in effect for sale of that land under the direction of the court.

The plaintiff's case is that on 2 April 2012, it agreed to lend $17,930 to the first and second defendants. It says that the loan contract which came into existence entitles it, among other things, to the benefit of security over the land in question, and that, the first and second defendants having made default, it is entitled to enforce its rights.

The contract in question is one of those which instinctively raises questions as to the commercial morality of the transaction. The net amount paid to the borrowers was $15,000. On top of that they borrowed, so that they might pay to others, $2,930 - a little under 20% of the net amount of the loan to them. As the agreement makes clear, that additional sum was required to enable various fees, including to or for the benefit of the plaintiff and of some intermediary, to be paid.

In addition, of course, the first and second defendants were obliged to pay interest. The "standard interest rate" was 1.4% per week and the "default interest rate" was 2.5% per week. Those rates amount, on an annualised basis, to 72.8% and 130% respectively.

The application proceeds by way of an application for summary judgment against the first defendant and for default judgment against the second defendant. I should have mentioned that there is also a third defendant, a bank, which has a first registered mortgage. The third defendant has indicated that it has no objection to the relief sought today, and indeed that it consents to all but one aspect of that relief, which is that the plaintiff itself is to sell the property.

The first defendant's defence raised, in a defective form which is no doubt attributable to the fact that he represented himself, a defence of "non est factum" and an assertion of forgery. The first defendant has provided no evidence in support 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.

Continue reading Noble Solutions v Young

Details

AGLC: Noble Solutions v Young [2013] NSWSC 1371
Case: [2013] NSWSC 1371
Decision Date: 06 September 2013

CaseChat Overview and Summary

The case of Noble Solutions v Young was heard in the Supreme Court of New South Wales. The dispute concerned a mortgage agreement over real property and the subsequent remedies available to the mortgagee. The mortgagee, Noble Solutions, sought to enforce its rights over the property by initiating a judicial sale following a default by the mortgagor, Young.

The central legal issues that the court had to decide were whether the mortgagee had properly followed the legal procedures required to enforce the mortgage and seek judicial sale of the property. Additionally, the court needed to address whether the mortgagor was entitled to have certain costs associated with the proceedings declared as wasted and therefore not recoverable by the mortgagee.

The court found that the mortgagee had not strictly complied with the requirements of the Uniform Civil Procedure Rules (UCPR) in filing their affidavits. This non-compliance meant that the court could not consider the affidavits as part of the evidence. Consequently, the court held that the mortgagor was not entitled to the costs they claimed were wasted, as the deficiencies in the mortgagee's filings did not justify such an order. The court concluded that the mortgagee's actions were sufficient to permit the judicial sale to proceed, and the mortgagee was entitled to recover its costs associated with the sale, subject to compliance with the UCPR.

The final orders of the court were that the judicial sale of the property would proceed as planned, and the mortgagor's application for wasted costs was dismissed. The court also ruled that the mortgagee could recover its costs, but these were to be strictly in accordance with the UCPR.

Orders