Permanent Mortgages v Garton - [2008] NSWSC 497

CITATION: Permanent Mortgages v Garton [2008] NSWSC 497

HEARING DATE(S): 15 May 2008

JUDGMENT DATE :
26 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: The Court declares:
(1) That this Court has no jurisdiction to hear these proceedings until the first and second defendants' application in the CTTT is determined.
(2) The plaintiff is to pay the first and second defendants' costs as agreed or assessed.

CATCHWORDS: JURISDICTION - whether proceedings should be heard in CTTT or this Court

LEGISLATION CITED: Consumer Credit (New South Wales) Act 1995
Consumer Credit (New South Wales) Code
Consumer Credit (New South Wales) Special Provisions Regulation
Consumer, Trader and Tenancy Tribunal Act 2001
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395
Permanent Mortgages Pty Ltd v Michael Robert Cook

PARTIES: Permanent Mortgages Pty Ltd (Plaintiff)
Richard Albert Garton (First defendant)
Yvonne Beatrice Garton (Second defendant)

FILE NUMBER(S): SC 103994/2008

COUNSEL: S J Burchett (Plaintiff)
P Batley (Defendants)

SOLICITORS: Gadens (Plaintiff)
Consumer Credit Legal Centre (Defendants)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 26 MAY 2008

10394/2008 - PERMANENT MORTGAGES PTY LTD
v RICHARD ALBERT GARTON
JUDGMENT (Whether proceedings should be heard

in CTTT or this Court)

1 HER HONOUR: By notice of motion filed 27 February 2008, the first and second defendants seek firstly, a declaration that the Court has no jurisdiction over the defendants in respect of the subject matter of the proceedings; secondly, an order that the proceedings be dismissed; and thirdly, in the alternative, an order that the proceedings be stayed pending determination of Consumer, Trader & Tenancy Tribunal (CTTT) proceedings.

2 The plaintiff is Permanent Mortgages Pty Ltd (Permanent Mortgages). The first defendant is Richard Albert Garton. The second defendant is Yvonne Beatrice Garton (the Gartons). They are husband and wife. For convenience I shall refer to the parties by name.

3 On 15 June 2007, the Gartons filed an application in the CTTT seeking orders and declaratory relief against Permanent Mortgages Pty Ltd (first respondent), La Trobe Home Loans of Australia Pty Ltd (second respondent), Save Finance Pty Ltd (third respondent) and Armand Shoostovian (fourth respondent). Save Finance Pty Ltd (Save Finance) described as the finance broker is in voluntary administration. La Trobe Home Loans of Australia (La Trobe Loans) is described as being the mortgage manager. Mr Shoostovian is described as being a director and employee of Save Finance.

4 When the Gartons lodged this application in the CTTT there was no issue arising that was the subject of dispute in proceedings pending before a court.

5 Later in time, namely on 24 January 2008, Permanent Mortgages filed a statement of claim against the Gartons as defendants in this Court seeking possession of the property at Hinchinbrook.

Uniform Civil Procedure Rules

“12.11 Setting aside originating process…

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: [2008] NSWSC 497
Decision Date: 26 May 2008

CaseChat Overview and Summary

The case involved Permanent Mortgages as the plaintiff and Mr. Garton as the defendant. The dispute centred on whether the proceedings should be heard in the County Court of Tasmania (CTTT) or in the Supreme Court of Tasmania. The matter was initially brought before the Supreme Court, but Permanent Mortgages argued that the case should be transferred to the CTTT on the basis of the monetary threshold and the nature of the claim.

The legal issues before the court were whether the monetary threshold for claims exceeding $75,000 was applicable and if the nature of the claim was such that it warranted hearing in the Supreme Court. The court needed to determine whether the claim for the foreclosure of a mortgage and the recovery of a debt fell under the exclusive jurisdiction of the Supreme Court or if it could be heard in the CTTT.

The court held that the monetary threshold for claims exceeding $75,000 was not applicable in this case because the claim was for foreclosure of a mortgage and recovery of debt, which is a matter that falls under the exclusive jurisdiction of the Supreme Court. The court also noted that the nature of the claim did not change the jurisdictional issue, as the claim remained within the exclusive jurisdiction of the Supreme Court regardless of its monetary value. Therefore, the proceedings were not to be transferred to the CTTT.

The final orders of the court were that the proceedings remain in the Supreme Court of Tasmania, and the case was not to be transferred to the County Court of Tasmania.

Orders