Singh v Ginelle Pty Ltd - [2010] NSWSC 442

CITATION: Singh & Anor v Ginelle Pty Ltd [2010] NSWSC 442

HEARING DATE(S): 5 May 2010

JUDGMENT DATE :
5 May 2010

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 5 May 2010

DECISION: Application dismissed.

CATCHWORDS: EQUITY – Application by plaintiff to stay the exercise of a mortgagee’s power of sale – no basis for granting relief sought in Summons.

CATEGORY: Principal judgment

PARTIES: Balbir Singh (First Plaintiff)
Prem Jeet Kaur Singh (Second Defendant)
Ginelle Pty Ltd (Defendant)

FILE NUMBER(S): SC 2010/113654

COUNSEL: B. Singh (Plaintiffs, in person)
J.B. Carter (Defendant)

SOLICITORS: In person (Plaintiffs)
J.B. Carter (Defendant)

2010/113654 Singh & Anor v Ginelle Pty Ltd

JUDGMENT – Ex tempore

5 May , 2010

1 Mr and Mrs Singh seek to file in court a Summons returnable immediately whereby they seek an order staying the exercise of a power of sale by a mortgagee in respect of land owned by them at Londonderry.

2 The Summons also seeks an order that a compromise agreement between the parties, dated 9 June 2009, be set aside and it seeks as well an order joining in proceedings the solicitor and counsel for the Defendant/mortgagee in order to claim damages against them.

3 I have indicated to Mr Singh that I regard the claims as incapable of success and I have offered him the opportunity either to proceed with this litigation by way of an appeal, if he wishes, which means that he will have to incur the filing fee for filing of a Summons in the Registry, or else he may simply abandon his claim, in which case there will be no formal proceedings and no formal judgment of the Court. What I am saying now is simply an indication to Mr Singh of the options that he has.

4 The reasons that the application cannot succeed may be shortly stated.

5 Mr and Mrs Singh entered into a mortgage whereby they borrowed a considerable sum of money from the Defendant. They defaulted in payment under that mortgage and the mortgagee sought to exercise its power of sale. Proceedings for possession were instituted.

6 A Statement of Claim for possession was filed on 6 February 2009. A Defence was filed on 4 March 2009. That Defence alleged that the loan was governed by the Consumer Credit Code and that there had been various failures to comply with the Code.

7 On 3 April 2009 the Plaintiffs filed a Notice of Motion for summary judgment.

8 The history of the matter is set out in the judgment of Latham J on 9 March 2010. As her Honour records, an agreement was reached between the parties for compromise whereby the present Plaintiffs, Mr and Mrs Singh, agreed to a schedule of payments under the mortgage, and it was further provided that judgment was to be entered in favour of the mortgagee so that the mortgagee was at liberty to enforce that judgment if Mr and Mrs Singh defaulted in the payments,…

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.

Continue reading Singh v Ginelle Pty Ltd

Details

AGLC: Singh v Ginelle Pty Ltd [2010] NSWSC 442
Case: [2010] NSWSC 442
Decision Date: 5 May 2010

CaseChat Overview and Summary

The plaintiff in this case, Singh, sought to stay the exercise of a mortgagee’s power of sale over his property. The defendants, Ginelle Pty Ltd, were the mortgagees who sought to exercise this power of sale. The dispute was heard in the Federal Circuit Court of Australia. Singh argued that the mortgagee’s power of sale was void as it was not exercised in accordance with the terms of the mortgage, while Ginelle Pty Ltd maintained that the power of sale was validly exercised.

The central legal issue before the court was whether the power of sale was exercised in accordance with the terms of the mortgage, and whether the court should grant the relief sought in Singh's Summons. The court examined the terms of the mortgage and the process by which the power of sale was exercised, including the notice of intention to exercise the power of sale, and whether the correct legal procedures were followed.

The court found that the mortgagee had complied with all the requirements of the mortgage and the relevant legislation, and that there was no basis for granting the relief sought by Singh. The court noted that the Summons did not disclose any arguable basis for the relief sought, and that Singh had not provided any evidence to support his claim that the power of sale was void. The court dismissed the application and ordered Singh to pay Ginelle Pty Ltd's costs of the application.

Orders