RHG Mortgage Corporation Ltd v Astolfi

[2011] NSWSC 1526

Supreme Court

New South Wales

Medium Neutral Citation:

RHG Mortgage Corporation Ltd v Astolfi [2011] NSWSC 1526

Hearing dates:

9 December 2011

Decision date:

09 December 2011

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The Plaintiff is entitled to possession of the land comprised in Certificate of Title Folio Identifier 21/249136, being land situated at 15 Baralga Close, Niagara Park, New South Wales.

2. Leave to issue a writ of possession to enforce the judgment of the Court, such writ not to issue before 13 February 2012.

3. The Defendant is to pay the costs of the proceedings.

4. The subpoena filed by the Defendant on 4 October 2011 is struck out.

Catchwords:

REAL PROPERTY - possession of land - defence that loan has been securitized - Plaintiff is registered mortgagee - no notice of assignment given to Defendant -alleged breach of Credit Code - effect of - illegality.

Legislation Cited:

Conveyancing Act 1919
Real Property Act 1900

Cases Cited:

A v Hayden [1984] HCA 67; (1984) 156 CLR 532
Barac v Farnell [1994] FCA 1389; (1984) 125 ALR 241
Westpac Banking Corporation v Bower [1996] ACTSC 21
Westpac Banking Corporation v Mason [2011] NSWSC 1241

Category:

Principal judgment

Parties:

RHG Mortgage Corporation Ltd (Plaintiff)
Luciana Joan Astolfi (Defendant)

Representation:

P Newton (Plaintiff)
In person (Defendant)
Kemp Strang (Plaintiff)
In person (Defendant)

File Number(s):

2011/210147

Judgment

1. These proceedings commenced on 27 June 2011 seeking possession of land at 15 Baralga Close , Niagara Park as a result of a default under a loan agreement and a mortgage entered into with the Plaintiff. The loan agreement is dated 27 September 2007, and under that arrangement a sum of slightly less than $286,000 was advanced to the Defendant, the majority of which appears to have been used to pay out an earlier mortgage to Perpetual Trustees Victoria Limited. On 14 January 2008 the Plaintiff took a mortgage over the land to secure the provisions of the loan agreement.

1. Default has taken place on one or perhaps two occasions, but in any event since May of this year, and has not been remedied after the service of s 57 notices.

1. A defence was filed on 3 August 2011 to the claim, but it was struck out by me on 16 September because it did not disclose any defence known to the law. Subsequently defences were filed on 4, 19 and 21 October which raised the same or similar matters, including a demand by the Defendant to have the original loan agreement made available. On 21 October I directed that a copy of the loan agreement be provided to the Defendant and that was done.

1. Two further defences were filed in identical terms on 27 and 28 October, and for the purposes of this application I shall consider the defence of 28 October, it being the final one. That defence admits, by using the term "agrees with", paragraphs 1 to 7 of the Statement of Claim. That is, in effect, an admission of all the Plaintiff's allegations, but the defence goes on to deny that the Plaintiff is entitled to possession of the land due to what is described as the securitisation of the mortgage and a transfer of rights from RAMS home loan. There is also a statement that the Plaintiff is not entitled to possession due to a breach of the uniform Credit Codes provisions for what is said to be a concealment of commissions.

1. On 28 October 2011 I gave leave to the Plaintiff to file any Notice of Motion for summary judgment and I directed that the Notice of Motion was to be returnable and listed for hearing on 1 December 2011. The Defendant has always appeared for herself in the matter, assisted by her partner, Mr Mortell.

1. The Plaintiff has now moved by Notice of Motion dated 3 November 2011 for summary judgment for possession of the land.

1. On 1 December an application was made by the Defendant to adjourn the hearing of the Notice of Motion to enable her to have appear for her a Mr Walsh of counsel. Mr Walsh was not available on 1 December and was said not to be available for the remainder of the year due to other commitments. For that reason the Defendant asked that the hearing of the Motion be adjourned to 2012.

1. When I asked certain questions of the Defendant it became apparent that, although the Motion had been listed for hearing on 1 December on 28 October, an approach had not been made to Mr Walsh until about a week before 1 December. Nevertheless, because the Defendant was unrepresented I granted a further adjournment on 1 December until today where I indicated that the Motion would be heard, whether or not the Defendant was represented.

1. At the outset of the hearing of this Motion the Defendant sought an adjournment again to enable Mr Walsh to be present, but for the reasons which I have set out that application was refused and the matter has proceeded.

1. The affidavit evidence relied upon by the Plaintiff provides the necessary evidentiary support for the allegations contained in the Statement of Claim which, as I have said, are not disputed by the Defendant.

1. The Defendant has sworn an affidavit on 18 November which takes objection to various parts of the principal affidavit on behalf of the Plaintiff, that is, the affidavit of Callum Scotland, but I dealt with those objections earlier in the hearing. The principal point made by virtue of this affidavit is contained in an annexure which is described as a RAMS Mortgage Research and Securitisation Report of the Defendant's home loan done by Anderson & Associates. The exhibit was in fact a disc, but that has been copied into hard form and consists of many hundreds of pages of material.

1. Although I asked on a number of occasions during the course of the hearing for the Defendant to identify where in exhibit A there was evidence that her loan had been transferred to some other entity in a way that would deprive the Plaintiff of the right to pursue the possession claim, this has not been done. Nothing was identified at all concerning the loan agreement. Rather, a number of very general statements about what securitisation means and what is to be found in all of that material have been made.

1. A similar matter was raised before McCallum J in the matter of Westpac Banking Corporation v Mason [2011] NSWSC 1241 judgment delivered on 7 October 2011. In that judgment her Honour set out reasons why the so-called securitisation allegations said to amount to a defence did not preclude a registered mortgagee from being able to obtain possession of the property.

1. It seems to me that the same position applies in the present case as applied in that case. The evidence discloses that the Plaintiff is the registered mortgagee on the property. That, as McCallum J makes clear in Mason , gives it undeniable rights based on the indefeasibility provisions of the Real Property Act 1900.

1. Similarly to that case, the Defendant has confirmed that no notice has ever been received from the Plaintiff under section 12 of the Conveyancing Act 1919 giving notice of any assignment of the loan agreement. Accordingly, it must be held that there has been no assignment at law of the loan agreement. When that is coupled with the fact that the Plaintiff remains the mortgagee on the title, these matters seem to me to constitute undeniable reasons why the Plaintiff is entitled to take the present proceedings, and that any defence to the claim based on securitisation must inevitably fail.

1. In relation to the claim that there have been concealment of commissions contrary to the Credit Code, I note first the evidence of Mr Scotland, who has sworn that, having reviewed the records of RHG home loans, no commission was paid in respect of the loan agreement other than that which is disclosed in the loan agreement. Although the Defendant asserted that Mr Scotland only commenced to deal with the matter after the loan was made, I am satisfied from his affidavit that he has the requisite knowledge to give the evidence by reason of his examination of the books and records of the Plaintiff.

1. Although it was asserted during the course of argument by the Defendant that the securitisation agreement shows other commissions, they have never been identified. I venture to think in any event that what the securitisation documents are concerned with are not anything to do with what transpired at the outset of the loan agreement in 2007.

1. In any case, even if it were shown that there were commissions which contravened particular parts of the credit code, those parts of the credit code show that what is thereby prohibited amounts to an offence against the Act and may result under s 114 of the Act in the right to compensation. It does not, however, provide any defence to a claim made based on the loan agreement. The mere fact, if proved, that there was some illegality about the performance of the contract would not, without clear intention in the statute, mean that the amount lent could not be recovered: see Westpac Banking Corporation v Suzanne Bower [1996] ACTSC 21; A v Hayden [1984] HCA 67; (1984) 156 CLR 532 and the decision of the Full Court of the Federal Court in Barac v Farnell [1994] FCA 1389; (1984) 125 ALR 241. So to hold would result in a windfall to the Defendant.

1. In all of those circumstances, no defence to the claim by the Plaintiff is shown and the Plaintiff must be entitled to possession of the land. I make these orders:

1. The Plaintiff is entitled to possession of the land comprised in Certificate of Title Folio Identifier 21/249136, being land situated at 15 Baralga Close , Niagara Park, New South Wales.

2. Leave to issue a writ of possession to enforce the judgment of the Court, such writ not to issue before 13 February 2012.

3. The Defendant is to pay the costs of the proceedings.

4. The subpoena filed by the Defendant on 4 October 2011 is struck out.

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Decision last updated: 12 December 2011