Secure Funding Pty Ltd v Mears (No 2)
[2023] NSWSC 387
•28 April 2023
Supreme Court
New South Wales
Medium Neutral Citation: Secure Funding Pty Ltd v Mears (No 2) [2023] NSWSC 387 Hearing dates: 28 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Common Law Before: Davies J Decision: Judgment for the Plaintiff for possession of the whole land described in Certificate of Title Folio Identifier Lot 1 in Deposited Plan 1059042 the postal address of which is XXX Church Street, Glen Innes NSW 2370.
Catchwords: LAND LAW – possession of land – default under mortgage – no defence to the claim – where one registered proprietor died before proceedings commenced – no defence filed – judgment given for possession
Legislation Cited: Nil
Cases Cited: Secure Funding Pty Limited v Mears [2023] NSWSC 217
Texts Cited: Nil
Category: Principal judgment Parties: Secure Funding Pty Ltd (Plaintiff)
Gregory Ross Mears (First Defendant)
Jennifer Anne Mears (Second Defendant)Representation: Counsel:
Solicitors:
O Newman (Plaintiff)
No appearances (Defendants)
Norton Rose Fulbright (Plaintiff)
Unrepresented (Defendants)
File Number(s): 2022/202476 Publication restriction: Nil
Judgment
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These proceedings commenced on 11 July 2022 seeking possession of land at Church Street, Glen Innes and judgment for an amount said to be outstanding under a loan agreement entered into on 17 March 2008. The defendants named in the statement of claim, Gregory Ross Mears and Jennifer Anne Mears, were the borrowers under the loan agreement, and provided a mortgage at an earlier time, on 3 May 2005. That mortgage secured the amount under the loan agreement.
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On 15 March 2023, I gave judgment on an application by the plaintiff to substitute the NSW Trustee and Guardian for the first defendant Gregory Ross Mears who had died before the proceedings commenced: Secure Funding Pty Limited v Mears [2023] NSWSC 217. In that judgment, I also gave leave for the plaintiff to file an amended statement of claim as a result of the substitution of the NSW Trustee and Guardian for Gregory Ross Mears.
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Default judgment for what was owing under the loan agreement had been obtained by the plaintiff on 20 September 2022. However, on 11 October 2022 that judgment was set aside to the extent that it concerned Gregory Ross Mears because of his death. The plaintiff now seeks possession against the defendants.
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The basis for seeking the order for possession is a default under the loan agreement and the mortgage entered into by the mortgagors. I am satisfied from the affidavit of Matthew Menzies, an asset realisation officer of the plaintiff, that a default occurred under the loan agreement in or about December 2021 and has subsequently not been rectified. Under cl 18 of the memorandum incorporated into the mortgage, a default occurs if the amount owing is not at any stage paid when it is required to be. Under cl 19, if a default occurs the plaintiff may take possession of the secured property.
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The affidavit of Simon Bevilacqua of 11 April 2023 attests to service of the amended statement of claim on the second defendant. Further, I am satisfied from the affidavits of Roger Bruce Duncombe of 2 August 2022, that a notice to occupier was served pursuant to the Uniform Civil Procedure Rules.
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The Amended Statement of Claim together with the orders made by the Court on 15 March 2023 have also been served on the NSW Trustee and Guardian. No defence to the claim has been filed by either the second defendant or the NSW Trustee and Guardian. The NSW Trustee and Guardian has no responsibility to take any active steps in the proceedings.
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In the circumstances the plaintiff is entitled, as a result of the default, to possession of the land.
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In those circumstances, I make the following order:
Judgment for the plaintiff for possession of the whole land described in certificate of title, folio identifier lot 1 in deposited plan 1059042, the postal address of which is XXX Church Street, Glen Innes, NSW 2370.
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Decision last updated: 28 April 2023
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