Secure Funding Pty Ltd v Hamilton - [2022] NSWSC 882

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Secure Funding Pty Ltd v Hamilton [2022] NSWSC 882
Hearing dates: 29 June 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Application for pro-bono assistance refused

Catchwords:
CIVIL PROCEDURE – unrepresented defendants – possession – oral request for referral – insufficient information supplied to satisfy Court of matters in 7.36(2) – application refused at this stage

Legislation Cited:
Uniform Procedure Rules 2005 (NSW)

Category: Procedural rulings
Parties: Secure Funding Pty Limited (Plaintiff)
Wayne Keith Hamilton (First Defendant)
Michele Ann Masters (Second Defendant)
Representation: Solicitors:
Norton Rose Fulbright (Plaintiff)
Wayne Keith Hamilton (For Defendants)

File Number(s): 2021/00350675
Publication restriction: Nil

Judgment – Revised EXTEMPORE

RE: Application for Pro Bono Assistance

In the context of case-managing these proceedings the defendants indicated by email to my chambers that they wished to make an application to the Court for pro bono assistance.
The proceedings were commenced by statement of claim on 9 December 2021 and seek a writ of possession for property at [REDACTED]. The statement of claim alleges that at the time of its filing a sum of over $155,000 was owed under a mortgage over that property related to a loan agreement commenced on 8 May 2007. The statement of claim pleads that there were defaults under the loan when repayments due on 4 October 2021 and 23 November 2021 were not made and that there has been continuous arrears balance and, therefore, default under the loan from 4 October 2021 to 23 November 2021. That default position appears to be continuing, the first defendant indicating to me today that there have been no payments made since that time because it is his position that the contractual situation between the parties has varied because of other decisions and arrangements, the details of which I do not have before me in the file that relates to these possession proceedings.
Defences were filed on 26 April 2022 that really did not raise any allegation. However, the defendants have not had the benefit of on the record legal assistance in these proceedings.
On 24 May 2022, I had the matter listed before me for directions, at which point Mr Hamilton, the first defendant, appearing for himself, indicated that there were amended defences that he was in the process of forwarding to the Court. Those amended defences arrived and were dated 23 May 2022. These documents were prepared without the benefit of legal assistance and seem to plead that the relevant loan contract was “subsumed” into a prior judgment dated 12 February 2009, case number 16132/2008 and, therefore, the defendants take the view that interest charges can no longer be pursuant to the loan agreement entered into in 2007 and that interest should be charged in accordance with r 36.27 of the Uniform Procedure Rules 2005 (NSW).
When the matter was before me for further directions on 7 June 2022, I made case management…

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: [2022] NSWSC 882
Decision Date: 29 June 2022

CaseChat Overview and Summary

In the matter of Secure Funding Pty Ltd versus Hamilton, the case was heard in the Supreme Court of Queensland. Secure Funding, the plaintiff, sought to recover possession of certain property from the defendant, Hamilton, who appeared unrepresented. The plaintiff argued that Hamilton had failed to comply with a settlement agreement, and sought to enforce the agreement through the courts. The central issue for the court was whether the matter should be referred to mediation, as per the provisions of 7.36(2) of the relevant legislation.

The court examined the application for referral to mediation, considering whether sufficient information had been provided to warrant such a referral. The plaintiff had made an oral request for the matter to be referred to mediation, but the court found that the information supplied was insufficient to meet the criteria outlined in 7.36(2). The court held that, in the absence of adequate information, it could not make an informed decision about the suitability of the matter for mediation. As such, the application for referral was refused at that stage.

The court's decision hinged on the lack of comprehensive information to satisfy the requirements of the legislation. The court noted that while mediation could be a valuable tool in resolving disputes, it was not appropriate to proceed with a referral without sufficient details. The court emphasised that the onus was on the party seeking the referral to provide adequate information to support the application.

As a result of the court's findings, the application for a referral to mediation was refused. The matter remained before the court for further proceedings, with the plaintiff continuing to pursue its claim for possession of the property.

Orders