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, as set out in the compromise. Mr and Mrs Singh did default, and leave to issue by Writ of Possession was granted consequent upon the judgment entered for the mortgagee.

9 A Notice of Motion was filed by Mr and Mrs Singh seeking to have that judgment set aside. That was the application that came before Latham J on 8 March 2010.

10 On 9 March 2010, her Honour gave reasons for refusing the application to set aside the judgment and the Writ of Possession and refusing to set aside the compromise agreement on which it was founded. That judgment of her Honour's was taken on appeal to the Court of Appeal, and Mr and Mrs Singh made an interlocutory application to the Court of Appeal for a stay of the Writ of Possession.

11 The matter came before Sackville AJ on 16 March 2010 and his Honour sets out in detail the history of the proceedings between the parties and comes to the conclusion that there was no basis made out for a stay of the Writ of Possession. His Honour drew attention to the various difficulties, which his Honour regarded as insurmountable, facing Mr and Mrs Singh in seeking to set aside the judgment and the compromise agreement.

12 The submissions made today before me by Mr Singh simply repeat the essence of the complaints which were agitated before Latham J, and before Sackville AJ in the Court of Appeal.

13 I have read an affidavit of Mr Singh in which he complains about the conduct of the mortgagee's solicitor, Mr Carter, and its Counsel, Mr Young. That conduct seems to be concerned with, firstly, failure to support an application for pro bono assistance from the Law Society's pro bono scheme and, secondly, some form of coercion or intimidation inducing the signing of the compromise agreement which gave rise to the entry of judgment.

14 Having read that affidavit, I can see nothing whatsoever in it to justify a complaint of any form of misconduct of deceptive behaviour either on the part of Mr Carter or Mr Young. I think that Mr Singh, with respect, has misunderstood what Adams J said in advising the solicitors for the mortgagee to write to the Law Society about the pro bono application of Mr and Mrs Singh. All that his Honour suggested was that they write in order to inform the Law Society that if pro bono assistance were given then the Law Society should inform the mortgagee plaintiff of that position as soon as possible so that everybody concerned in the proceedings would know what necessary steps needed to be taken to bring the matter forward for trial.

15 In those circumstances, there is no basis which I can see for granting the application to stay the auction, or for grant of any of the other relief which is sought in the Summons.

– oOo –