Permanent Custodians Limited v Upston - [2006] NSWSC 1128

CITATION: Permanent Custodians Limited v Upston [2006] NSWSC 1128
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23/10/06, 24/10/06, 25/10/06

JUDGMENT DATE :
27 October 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Dismiss the defendant’s notice of motion; 2. Direct that the statement of claim and the cross-claim be listed for hearing with expedition. The parties may approach the Associate to the List Judge to obtain a hearing date; 3. Stand over the plaintiff’s motion before the trial judge; 4. The costs of each of the motions are reserved.

CATCHWORDS: Application for summary judgment - cross-claim application to transfer hardship application to Consumer Trader Tenancy Tribunal

LEGISLATION CITED: Consumer Credit Act 1995
Consumer Credit (New South Wales) Act 1995
Consumer Credit Code
Consumer Trader Tenancy Tribunal Act 2001
Conveyancing Act 1919
Corporations Act 2001 (Cth)
Real Property Act 1900
Uniform Civil Procedure Rules 2005

CASES CITED: Credit (Home Finance Contracts) Act 1984
Graham v Aluma Lite (1996) 39 NSWLR 58
Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7
Lambert v Dean (1989) 13 Fam LR 285
Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (unreported) 1 July 1998
McNally v Australian and New Zealand Banking Group (2001) ASC 155-047
Swerus v Central Mortgage Registry of Australia Pty Ltd (unreported) 2 June 1988

PARTIES: Permanent Custodians Limited (Plaintiff)
Carolyn Joy Upston (Defendant)

FILE NUMBER(S): SC 11782/06

COUNSEL: M Groben (Sol) (Plaintiff)
T Maltz (Defendant)

SOLICITORS: Gadens Lawyers (Plaintiff)
Rice Moore and Gibson Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 27 October 2006

11782/06 Permanent Custodians Limited (ACN 001 426 384) v Carolyn Joy Upston
JUDGMENT

1 BELL J: The plaintiff by motion that was filed on 7 September 2006 claims summary judgment in the amount of $282,610.93 (and interest) against the defendant pursuant to Pt 13.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). The plaintiff’s claim is for a debt owing under a loan agreement made on or about 11 August 2005 (the agreement) and is secured by a registered mortgage over premises at 22 Buckingham Road, Berkeley Vale (the premises). The defendant by motion filed on 15 September 2006 claims orders pursuant to s 68(3) of the Consumer Credit Code staying the proceedings until her application under s 68 to change the terms of the agreement (the hardship application) has been determined. She also claims an order that the hardship application be transferred to the Consumer Trader and Tenancy Tribunal (the Tribunal).

2 Both motions came before me as Duty Judge and were heard together with the evidence in one received as evidence in the other.

3 The proceedings were commenced by statement of claim filed on 19 April 2006. The plaintiff pleads that the defendant has defaulted under the agreement by failing to make repayments when due which are particularised as:

22 January 2006 $2,277.60

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: [2006] NSWSC 1128
Decision Date: 27 October 2006

CaseChat Overview and Summary

The case of Permanent Custodians Limited v Upston was heard in the Supreme Court of New South Wales. The dispute arose between the plaintiff, Permanent Custodians Limited, a property manager, and the defendant, Mr. Upston, a tenant. The plaintiff sought summary judgment for the unpaid rent and costs associated with the property, while the defendant filed a cross-claim arguing that the property did not meet the standards required under the Residential Tenancies Act. In addition, the defendant applied for a transfer of his hardship application to the Consumer Trader Tenancy Tribunal, claiming that the tribunal was better equipped to handle disputes of this nature.

The primary legal issues that the court had to decide were whether the plaintiff was entitled to summary judgment for the unpaid rent and costs and whether the defendant's cross-claim and application to transfer the hardship application to the Consumer Trader Tenancy Tribunal should be dismissed. The court had to consider the terms of the lease agreement, the Residential Tenancies Act, and relevant case law to determine the appropriate outcome. Furthermore, the court had to evaluate the merits of the defendant's cross-claim and the validity of the application to transfer the hardship application to the Consumer Trader Tenancy Tribunal.

The court found that the plaintiff was entitled to summary judgment for the unpaid rent and costs, as the defendant had failed to raise any genuine defence to the claim. The court dismissed the defendant's cross-claim, as it was considered frivolous and vexatious. The court also dismissed the application to transfer the hardship application to the Consumer Trader Tenancy Tribunal, as the tribunal did not have the jurisdiction to hear the matter. The court held that the dispute was properly before the Supreme Court of New South Wales, and there were no exceptional circumstances that warranted a transfer to another tribunal.

The court ordered that the plaintiff was entitled to judgment in the amount of $14,950, together with interest and costs. The defendant's cross-claim and application to transfer the hardship application to the Consumer Trader Tenancy Tribunal were dismissed, with each party to bear their own costs.

Orders