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Perpetual Limited v Kelso

Perpetual Limited v Kelso

Case [2008] NSWSC 906 19 August 2008

Mortgages & Security Interests

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CITATION: Perpetual Limited v Kelso and Anor [2008] NSWSC 906

HEARING DATE(S): 19 August 2008

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 19 August 2008

DECISION: Notice of Motion dismissed. No order as to costs.

CATCHWORDS: MORTGAGES - claim by mortgagee for possession of land following mortgage default - default judgment entered and writ of possession issued - writ of possession executed and Plaintiff takes possession of property - Defendants re-enter property - Plaintiff obtains writ of restitution - Defendants seek stay of execution of writ of restitution and apply to set aside default judgment - McKenzie friend - claim to right of trial by jury - relief refused - Plaintiff entitled to proceed with writ of restitution

LEGISLATION CITED: Supreme Court Act 1970
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Damjanovic v Maley (2002) 55 NSWLR 149
Teese v State Bank of NSW [2002] NSWCCA 219
Maroubra Rugby League Football Club v Malo (2007) 69 NSWLR 496
Pitcher v Roe (1841) 9 Dowl 971
Alliance Building Society v Austen [1951] 2 All ER 1068
Abram v National Australia Bank Ltd (Court of Appeal, 1 May 1997, BC9701553)
Maher v Commonwealth Bank of Australia (No 2) (2004) 211 ALR 656
R v Elliott [1955] VLR 126
Balanced Securities Limited v Oberlechner [2007] NSWSC 80
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889
Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139
Adelaide Bank Limited v BMG Poseidon Corp Pty Ltd [2008] NSWSC 68

PARTIES: Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) (Plaintiff)
Kerrie Anne Kelso and Dallas John Kelso (Defendants)

FILE NUMBER(S): SC 11717/08

COUNSEL: Mr A Casselden (Plaintiff)
Kerrie Anne Kelso and Dallas John Kelso (Defendants in person)

SOLICITORS: Gadens Lawyers (Plaintiff)

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

Johnson J

19 August 2008

11717/08 Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) v Kerrie Anne Kelso and Anor
JUDGMENT

1 JOHNSON J: By Notice of Motion filed 15 August 2008 the Defendants, Kerrie Anne Kelso and Dallas John Kelso, seek certain relief with respect to proceedings commenced against them by the Plaintiff, Perpetual Limited (formerly known as Perpetual Trustees Australia Ltd).

2 The Notice of Motion seeks the following orders:

“(i) Judgment to set aside.

(ii) Defendant to be given leave to file defence.

(iii) Stay on the writ of possession or writ of restitution,

upon the grounds of needing time to prepare the full details of the defence.”

3 On the hearing of the Notice of Motion, Mr Casselden of counsel has appeared for the Plaintiff and opposes the relief sought by the Defendants. The Defendants are unrepresented by a legal practitioner. At the commencement of the hearing, application was made by the Defendants for leave to be granted for Mr John Wilson, who is not a legal practitioner, to appear for them as a “McKenzie friend”.

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 Perpetual Limited v Kelso

Details

AGLC: Adams v Kennick Trading (International) Ltd [2008] NSWSC 906
Case: [2008] NSWSC 906
Decision Date: 19 August 2008

CaseChat Overview and Summary

The dispute in Perpetual Limited v Kelso involved the Plaintiff, Perpetual Limited, as the mortgagee seeking possession of land following a default by the Defendants. The case was heard in the Supreme Court of New South Wales. The Defendants had defaulted on their mortgage payments, leading to the entry of a default judgment in favour of the Plaintiff. Subsequently, a writ of possession was issued, executed, and the Plaintiff took possession of the property. The Defendants then re-entered the property, prompting the Plaintiff to obtain a writ of restitution. The Defendants sought a stay of execution of the writ of restitution and applied to set aside the default judgment, arguing for a trial by jury with the assistance of a McKenzie friend. The court had to determine whether the Defendants could set aside the default judgment and whether they were entitled to a trial by jury.

The court examined the circumstances under which a default judgment could be set aside, considering the Defendants' application to set aside the judgment and the relief sought. The court also addressed the Defendants' claim to a trial by jury, evaluating the statutory provisions and precedents that governed such claims. The court found that the Defendants had not provided a sufficient basis to set aside the default judgment. Furthermore, the court ruled that the Defendants were not entitled to a trial by jury in this matter, as the statutory provisions did not support such a claim and the common law did not recognise a right to a jury trial in mortgage cases.

Given the court's findings, the relief sought by the Defendants was refused. The Plaintiff was accordingly entitled to proceed with the writ of restitution. The court's decision underscored the importance of strict adherence to court procedures and the limited circumstances under which a default judgment may be set aside. The court also affirmed the absence of a right to a trial by jury in mortgage cases. The final orders of the court directed that the writ of restitution be enforced, allowing the Plaintiff to regain possession of the property.

Orders