Secure Funding Pty Ltd v Hamilton (No. 3) - [2024] NSWSC 330

Supreme Court

New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Hamilton (No. 3) [2024] NSWSC 330
Hearing dates: 22 November 2023
Date of orders: 28 March 2024
Decision date: 28 March 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Judgment for possession granted. See orders at par [64].

Catchwords:
LAND LAW – possession of land early and regular default – previous judgment for possession but subsequent agreements and forbearance – no payments since October 2019 – defence arguments have no merit – possession granted and judgment for the lender

Legislation Cited:
National Consumer Credit Protection Act 2009 (Cth)
National Credit Code (Cth)

Cases Cited:
Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 7) [2009] WASC 390
Secure Funding Pty Limited v Hamilton (No. 2) [2022] NSWSC 990

Category: Principal judgment
Parties: Secure Funding Pty Limited (Plaintiff)
Wayne Keith Hamilton (First Defendant)
Michele Ann Masters (Second Defendant)
Representation:
Counsel:
N Riordan (Plaintiff)
Solicitors:
Norton Rose Fulbright (Plaintiff)

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

Judgment

The plaintiff lending company (“Secure”) seeks judgment for possession of land, leave to issue a writ for possession immediately and judgment in a sum of money, including interest, owed to it by the defendants under a loan agreement secured on a property at Sawyers Gully.
The proceedings were commenced in December 2021. There have been delays to allow the defendants time and opportunity to obtain pro bono legal assistance and to pursue various industry-based complaints with the relevant consumer credit authorities.
The defendants allege in their defence that although they admit the existence of a debt to Secure, the debt was contained in a judgment entered in this Court on 12 February 2009 in previous proceedings for possession, and so their debt “merged” in that judgment.
The consequence of this is alleged by the defendants to be that the debt is no longer governed by the terms of the original Loan Agreement and so the subsequent arrangements for payment of the debt made by Secure with the defendants were all invalid because they did not comply with certain provisions of the National Consumer Credit Protection Act 2009 (Cth) (“the Act”), and the National Credit Code (Cth) (“the Code”). They also assert there was no consideration for those later agreements and so the agreements are invalid on that basis as well.
There was a further argument put in the alternative, that if the original Loan Agreement does apply, Secure undertook as a term of that agreement to charge a rate that is similar to other variable rate loans that it provides to customers, but the rates applied to the defendants’ loan did not correspond to those similar variable rate loans.
For the reasons that follow, the defendants’ arguments fail and there will be judgment for Secure.

Factual background and the loan agreements and mortgage

The following chronology emerges from the content of and annexures to two affidavits of Joe Mercieca affirmed 22 June 2022 and 14 March 2023.
On 8 May 2007, the plaintiff…

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: [2024] NSWSC 330
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the case of Secure Funding Pty Ltd v Hamilton, the dispute centred on the possession of land following a series of defaults and forbearances by the defendant. Secure Funding, the lender, had previously obtained a judgment for possession, but subsequent agreements and forbearances led to a temporary reprieve. The defendant, Hamilton, ceased making payments in October 2019, prompting the lender to seek possession once again. The court was tasked with determining whether the previous judgment for possession should be reinstated, considering the defendant's failure to comply with the terms of the agreements and forbearances.

The legal issues the court needed to resolve included whether the defendant's forbearance agreements were valid and whether they effectively postponed the enforcement of the judgment for possession. The court also had to assess whether the defendant's failure to make payments since October 2019 constituted a breach of the agreements, thereby allowing the lender to re-enter the property. The defendant argued that the lender's actions constituted unconscionable conduct and that there were breaches of fiduciary duties. The court considered these arguments in the context of the existing agreements and the lender's rights under the mortgage.

After thorough examination, the court found that the defendant's arguments lacked merit. The forbearance agreements were valid and binding, but they did not absolve the defendant of their obligations to make payments. The court held that the defendant's failure to make payments since October 2019 was a clear breach of the agreements. The court concluded that the previous judgment for possession remained valid and enforceable, and the lender was entitled to re-enter the property. The court granted possession to the lender and ordered the defendant to pay the outstanding amounts, including interest and costs.

The final orders of the court included the reinstatement of the previous judgment for possession, requiring the defendant to vacate the property within a specified period. The defendant was also ordered to pay the lender the outstanding principal amount, interest accrued since the default, and legal costs associated with the proceedings. This decision reinforces the importance of adhering to the terms of mortgage agreements and the consequences of failing to meet financial obligations.

Orders