Supreme Court
New South Wales
Medium Neutral Citation: Westpac Banking Corporation v Glynn [2022] NSWSC 1770 Hearing dates: 15 December 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: See [33]
Catchwords: SUMMARY JUDGMENT – possession of land – no question of principle
Legislation Cited: Real Property Act 1900
National Credit Code
Cases Cited: McFarlane v McFarlane [2021] VSC 197
Re Culleton [2016] FCA 1193
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [140]
Category: Principal judgment Parties: Westpac Banking Corporation (ABN 33 007 457 141) (Plaintiff)
Susan Gabrielle Glynn (Defendant)Representation: Counsel:
Solicitors:
M Paterson, Minter Ellison (Plaintiff)
Self-represented (Defendant)
Minter Ellison (Plaintiff)
Self-represented (Defendant)
File Number(s): 2021/208023
EX TEMPORE JUDGMENT (revised from transcript)
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This judgment concerns a notice of motion filed on 1 September 2022 seeking summary judgment of a claim for possession of land at Mandalong, based upon default in payment of loan amounts said to be owing under a mortgage.
Background
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The plaintiff, Westpac Banking Corporation (“Westpac”), seeks possession of the subject property pursuant to a mortgage the defendant, Ms Glynn, was said to have been entered into on 4 March 2009. The mortgage was said to secure two loan facilities proffered to Ms Glynn being two loan accounts, one with a limit of $150,000 and the second with a limit of $280,000.
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The terms of the loan facilities were varied from time to time including by an extension of their repayment date. Clause C2 of the common provisions to the mortgage contained a term, often included in mortgages, that provided if there was a failure to make a payment due, and the failure continued for at least seven days, then the lender may notify of the failure, and if that failure continues for at least 31 days up to service of the notice, then the lender may take possession of the property.
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Westpac contends that by 28 October 2020 Ms Glynn was in default under the first loan account for an amount of $17,322.34, which had been outstanding for a period of at least seven days. On the following day it served a notice, both under section 57(2)(b) of the Real Property Act 1900 and section 88 of the National Credit Code in respect of that default which was not remedied within the time period stipulated.
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With that breach still not having been remedied, Westpac commenced these proceedings by filing a statement of claim on 21 July 2021, in the short‑form seeking possession. There were difficulties with service and substituted service was effected in early March of this year. After some exchange of materials, a defence was eventually filed on about 15 August 2022. It was the terms of that defence that warranted this summary judgment application.
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The notice of motion was first listed for hearing before me on 1 December 2022. On that day Ms Glynn indicated that she had not received a…
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- Case
- [2022] NSWSC 1770
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code, as well as the principles governing summary judgment applications. The court needed to determine whether the undisputed facts were sufficient to conclude that the bank was entitled to possession of the property without the need for a trial. The central issue was whether the bank had satisfied the legal requirements to obtain summary judgment in cases involving possession of property due to default under a credit contract.
The court held that the bank had met the criteria for summary judgment. The undisputed facts demonstrated that the defendant had defaulted on the mortgage payments, leading to the bank's right to possession of the property. The court reasoned that, given the absence of any genuine dispute regarding the material facts, the bank was entitled to the relief sought. The principles of property law and the statutory provisions supported the bank's application, as there was no question of principle that warranted a trial. The court therefore granted the bank's application for summary judgment.
The final orders of the court mandated that the defendant, Glynn, vacate the property within a specified period. The bank was also granted possession of the property, and the defendant was ordered to pay the costs associated with the application. The judgment reflected the court's determination that the undisputed facts provided a clear basis for the grant of summary judgment, thereby resolving the dispute without the need for a full trial.
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Legal Principle Established
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