Statewide Secured Investments Ltd v Urbano

[2011] VCC 10

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
BANKING AND FINANCE

COMMERCIAL LIST

Case No.CI-10-03354

STATEWIDE SECURED INVESTMENTS	Plaintiff
LTD
v
ANDREW JOHN URBANO & CATHERINE	Defendants
LOUISE URBANO

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2010 & 4 February 2011
DATE OF JUDGMENT:	4 February 2011 (Revised 14 February 2011)
CASE MAY BE CITED AS:	Statewide Secured Investments Ltd v Urbano & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 10

REASONS FOR JUDGMENT

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Catchwords: Summary Judgment application- whether a question ought to be tried pursuant to Order 22 of the County Court Civil Procedure Rules 2008- no question to be tried

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Stuckey	Dawes & Vary Pty Ltd
For the Defendant	Dr J Glover	Valos Black & Associates
HER HONOUR:

1 This is the return of a summons filed 16 November 2010 for summary judgment under Order 22 of the County Court Civil Procedure Rules 2008.[1]

[1]             The summons was returnable at 9.30 a.m. on Friday, 4 February in the Banking and Finance Directions List at which time orders and reasons were provided ex tempore. These reasons are a revised form of the oral reasons so provided.

2          The Summons was previously returnable before me on 3 December 2010 at which time the matter was adjourned in order to give the defendants an opportunity to file and serve further material.

3          The summons is supported by an affidavit of Mr John Neale of 10 November 2010. An affidavit in opposition has been filed by Mr Andrew John Urbano sworn 22 December. There is also an affidavit in reply by Mr Neale sworn 28 January 2011.

4          I have had an opportunity to read the affidavits prior to hearing both Counsel this morning. I have also read a proposed form of order filed by the plaintiff.

5          I am conscious of the fact that the power to order summary judgment should be exercised with great care and never unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd[2] cited with approval by the Court of Appeal in the decision of Hausman & Hodgkinson v Abigroup Contractors Pty Ltd[3] (and also cited by Counsel for the defendants).

[2] (1983) 154 CLR 87, 99

[3] (2009) VSCA 288

6          I initially raised the question of the application of the Civil Procedure Act 2010 (CPA) with Counsel. However, both Counsel proceeded on the basis that it did not apply to this application (which may be justified on the basis that the court had previously begun to hear the proceeding pursuant to s76(2)). In the result, the plaintiff was content to proceed without the benefit of the more liberalised test under section 61 of the CPA and rather on the basis of the more traditional approach cited already.

7          Although the material appeared to raise various matters, Dr Glover only pursued 4 matters in order to demonstrate that there was some real question to be tried.[4] I have considered those four matters (which I will elaborate on below) and have determined that they raise no issue to be tried.

[4]             These were set out in a document entitled “Summary of Defendants’ Submissions”

8          However, Mr Stuckey also submitted that, regardless of any of the matters raised this morning by Dr Glover, no real question to be tried has been raised in relation to the order for possession.

9 I accept that submission. Whatever might be said in relation to the four matters, paragraphs 8 and 10 of the first affidavit of Mr Neale clearly establish defaults which are not challenged by the affidavit of Mr Urbano. Sections 78 and 81 of the Transfer of Land Act 1958 suggest that the plaintiff has an immediate right to possession in those circumstances[5] and it follows that no real question to be tried has been raised in relation to the making of the first order for possession.

[5]             City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1

10        In terms of the four matters that have been raised, they are further considered, below.

(a) alleged variance between allegation and proof of mortgage terms

11        The first submission is that there was a defect in the Amended Statement of Claim in paragraphs 5 and 12, in that it has not been properly alleged that there needed to be a default for seven days as set out in clause 1(2) of the Memorandum of Common Provisions.

12        This was a matter of pleading rather than a matter of substance and I am not here to determine a pleading summons. The affidavit material clearly proves the defaults, which have not been remedied, as indicated already.

(b) No proof of indebtedness “by the middle of August 2008”

13        The second line of attack was that exhibits at JN5 and JN6 of the first affidavit of Mr Neale were inadmissible as hearsay.

14 However, pursuant to s.75 of the Evidence Act 2008, in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

15        In any event, the plaintiff is pursuing its quantum on the basis of up to date certificates (being exhibits JN9 and JN10) so that the matter raised has no consequence and does not raise a triable issue.

(3) No proof of “the amount now owing”

16        The third matter raised was pursued more strongly. It was suggested that the certificates contained in exhibits JN9 and JN10 did not comply with the terms of the mortgage. In particular, it was alleged that Mr Neale did not have the requisite connection as required by clause 31(10) of the Memorandum of Common Provisions.

17         Clause 31(10) of the Memorandum of Common Provisions provides that “a certificate purporting to be signed by the Mortgagee or by any of its solicitors, directors, secretaries, managers or other duly authorised officers” stating various matters, “shall be prima facie evidence” of such matters .

18        In the certificates Mr Neale describes himself as a “Senior Relationship Manager” for Statewide Secured Investments Ltd and signs also as “Senior Relationship Manager” (emphasis added).

19        It is therefore apparent from the certificates that Mr Neale is a “manager” as required by clause 31(10). If there be any doubt, his authority to sign the certificates is confirmed by his description as a Senior Relationship Manager, on oath, in both affidavits.

20        An earlier submission to the effect that the certificates were objectionable hearsay was also not pursued.

21        In my view, then, no triable issue has been raised in relation to the production of the certificates.

(4) Alleged Confusion between the rights of the plaintiff and other entities

22        The defendants claimed that there was some sort of confusion between the rights of the plaintiff and other entities and queried whether there had been an assignment of the plaintiff’s rights to an entity known as Banksia Mortgages Ltd.

23        Both the mortgages and the certificates of title were in evidence (JN1-3 and JN11). In each case the plaintiff, Statewide Secured Investments Ltd, is clearly designated as mortgagee.

24        In Mr Neale’s second affidavit he also states that Banksia Mortgages Ltd acquired Statewide Secured Investments Ltd in 2009 and manages the mortgage practices on Statewide’s behalf (paragraph 5). However, Statewide Secured Investments Ltd remains the registered mortgagee and entitled to possession. The reference to Banksia Mortgages Ltd in some of the correspondence (highlighted by Dr Glover) is therefore readily explicable.

25        A remaining issue was whether or not there was “confusion” as to the amount owing given Mr Urbano claimed that he had made two payments of $10,000 each and that the plaintiff was also paid an amount of $701,663.25. These amounts were not applied to the loans being the subject of this proceeding (see paragraph 2(b) of Mr Urbano’s affidavit).

26        As indicated already, the certificates are prima facie evidence of various matters including the quantum of the principal moneys secured.

27        In any event, as explained in Mr Neale’s affidavit in reply, the two sums of $10,000 were related to a different loan from Australasian Loan Company Pty Ltd (see paragraph 10). The sum of $701,663.25, constituting proceeds of a property at Urqhart Street, was used to pay a different loan secured by a mortgage over the property at Urqhart Street (see paragraph 12).

28        There also appears to be no contemporaneous evidence to suggest any real “confusion” on behalf of the Urbanos.

29        It follows, then, that I am not satisfied that there is any real question to be tried in relation to this matter, nor in relation to any of the other three matters raised.

30        I am further satisfied, on the affidavits, that the plaintiff is entitled to judgment for possession and pursuant to the certificates.

31        However, I will hear further from the parties as to the precise form of the orders.

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Certificate

I certify that these 5 pages are a true copy of the reasons for decision of Her Honour Judge

Kennedy, delivered on 4 February 2011, and revised on 14 February 2011.

Dated: 14 February 2011

Sonja Mileska
Associate to Her Honour Judge Kennedy