Prime Capital Securities Pty Ltd v Nusage Pty Ltd - [2024] ACTSC 36

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Prime Capital Securities Pty Ltd v Nusage Pty Ltd
Citation:	[2024] ACTSC 36
Hearing Date:	30 January 2024
Decision Date:	30 January 2024
Reasons Date:	22 February 2024
Before:	McWilliam J
Decision:	(1) Pursuant to s 96 of Land Titles Act 1925 (ACT) and registered mortgage [redacted], the plaintiff is granted exclusive possession of the property bearing Land Titles Reference [redacted] in the Australian Capital Territory. (2) On Friday 23 February 2024 at 3:00pm or such time as is otherwise agreed between the parties, the defendant is to provide access to the property to the plaintiff or their agent, for the purpose of assessment and appraisal for the sale of the property. (3) Parties have liberty to apply on 7 days’ notice. (4) The defendant is to provide vacant possession of the property by 16 March 2024 at 5:00pm. (5) Costs are reserved.
Catchwords:	PROPERTY – MORTGAGE – Possession – home loan – defendant defaulted – notice of default event given – Land Titles Act 1925 (ACT) s 96 – plaintiff entitled to possession. LAWYERS – REPRESENTATION – Company represented by Director – access to justice – Lack of pro bono referral scheme in Territory
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) s 12CB Corporations Act 2001 (Cth) s 109X Court Procedures Rules 2006 (ACT) rr 61, 1506, 6431 Evidence Act 2011 (ACT) s 50 Federal Court Rules 2001 (Cth) rr 4.12, 4.13 Land Titles Act 1925 (ACT) ss 93, 94, 95, 95A, 96 Supreme Court Act 1933 (ACT) s 31 Supreme Court (General Civil Procedure) Rules 2015 (VIC) r 63.34.2 Taxation Administration Act 1999 (ACT) s 56HA
Cases Cited:	Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271
Parties:	Prime Capital Securities Pty Ltd ACN 623 195 871 (Plaintiff) Nusage Pty Ltd (ACN 648 472 691) in its own capacity and as trustee for the Nusage Trust (ABN 61 452 208 486) (Defendant)
Representation:	Solicitors Lexmerca Lawyers ( Plaintiff) Self-represented ( Defendant)
File Number:	SC 289 of 2023

McWILLIAM J:

1․Ms Jia Tian is a pensioner whose sole source of income is derived from Centrelink benefits. She lives in a 6-bedroom residential property in an established street in the inner north suburb of Ainslie (the Property). She claims to have a number of significant ongoing disabilities, both physical and mental, which were made known to the Court during the hearing. She is also the sole director and shareholder of Nusage Pty Ltd (ACN 648 472 691) (Nusage), the defendant in this possession proceeding.
2․On 19 July 2021, Ms Tian, apparently with the assistance of an unidentified third party, caused Nusage, in its own capacity and as trustee for the Nusage Trust to enter into a Loan, Security and Guarantee Deed agreement (Loan Agreement) with the plaintiff in this proceeding, Prime Capital Securities Pty Ltd (Prime Capital). The loan was for the sum of $850,000.00 and was…

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.

Keep reading for free

Create a free CaseChat account to read Prime Capital Securities Pty Ltd v Nusage Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] ACTSC 36
Decision Date: 30 January 2024

CaseChat Overview and Summary

In the matter of Prime Capital Securities Pty Ltd versus Nusage Pty Ltd, the defendant was in default on a home loan secured by a mortgage over a property in the Australian Capital Territory. The plaintiff sought possession of the property pursuant to section 96 of the Land Titles Act 1925 (ACT). The primary legal issue before the court was whether the plaintiff was entitled to exclusive possession of the property following the defendant’s default. A secondary issue was whether the lack of a pro bono referral scheme in the Territory impacted the defendant’s access to justice.

The court found that the defendant had defaulted on their mortgage obligations and that the plaintiff had provided the required notice of the default event. The court was satisfied that the statutory requirements of the Land Titles Act 1925 (ACT) had been met. The court also noted that the defendant, represented by a director of the company, did not have access to a pro bono referral scheme, which may have impacted their ability to obtain legal representation. However, the court determined that this did not affect the plaintiff’s entitlement to possession under the terms of the mortgage and the Act.

Accordingly, the court granted the plaintiff exclusive possession of the property and ordered the defendant to provide vacant possession by 16 March 2024. The court also ordered the defendant to allow the plaintiff or their agent access to the property for assessment and appraisal. The parties were granted liberty to apply for further orders, and costs were reserved for another determination.

Orders

Orders of the court

(1) Pursuant to s 96 of Land Titles Act 1925 (ACT) and registered mortgage [redacted], the plaintiff is granted exclusive possession of the property bearing Land Titles Reference [redacted] in the Australian Capital Territory.

(2) On Friday 23 February 2024 at 3:00pm or such time as is otherwise agreed between the parties, the defendant is to provide access to the property to the plaintiff or their agent, for the purpose of assessment and appraisal for the sale of the property.

(3) Parties have liberty to apply on 7 days’ notice.

(4) The defendant is to provide vacant possession of the property by 16 March 2024 at 5:00pm.

(5) Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.