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Supreme Court of New South Wales |
Last Updated: 9 October 2003
NEW SOUTH WALES SUPREME COURT
CITATION: Olbourne & Ors v Mariott
Properties [2003] NSWSC 900
CURRENT JURISDICTION: Common Law
Division
FILE NUMBER(S): 10565 of 2003
HEARING DATE{S): 29
September 2003
JUDGMENT DATE: 03/10/2003
PARTIES:
Norman
Adrian Olbourne, Janet Dorothy Olbourne and Meccashore Pty Limited
(Plaintiffs)
v
Marriott Properties Pty Limited (Defendant)
JUDGMENT
OF: Master Malpass
LOWER COURT JURISDICTION: Not
Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT
JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr A Rogers
(Plaintiffs)
N/A (Defendant)
SOLICITORS:
R L Kremnizer &
Co (Plaintiffs)
Foleys (Defendant)
CATCHWORDS:
Claim for
possession
summary judgment
estoppel
invalidity of
provisions
technical deficiencies.
ACTS CITED:
Supreme Court Rules
1970, Pt 7 r 8, Pt 7 r 8 (1) (b), Pt 40 r 11.
DECISION:
The
plaintiffs are to have judgment for possession of the land described in
paragraph 1 of the Statement of Claim. Any claims for
costs and leave to issue
a writ for possession are referred to a Registrar. The Exhibit may be
returned.
JUDGMENT:
IN THE SUPREME COURT
OF NEW
SOUTH WALES
COMMON LAW DIVISION
Master
Malpass
Friday 3 October 2003
10565 of
2003 Norman Adrian Olbourne & Ors v Marriott Properties Pty
Limited
JUDGMENT
1 MASTER: Proceedings were
commenced by Statement of Claim filed on 7 March 2003. The plaintiffs seek
possession of certain residential
premises (the premises).
2 The claim is
founded on default under a registered mortgage dated 13 August 2002. It is
common ground that interest was paid until
the monthly payment due on 13 January
2003, that there was default in making the payments due on 13 January 2003 and
13 February
2003, that no payments were made thereafter and that the principal
sum has not been repaid.
3 On 5 May 2003, the plaintiffs filed a Notice
of Motion seeking summary judgment in respect of the claim for possession. The
defended
application was heard on 29 September 2003. The plaintiffs relied on
an affidavit sworn by Nicole Stein and an affidavit sworn by
Jacobus Botes. The
defendant relied on an affidavit sworn by Mr Orehek (the sole director and
shareholder of the defendant). He
was briefly cross-examined.
4 The
court has a discretionary power to grant summary relief. There is abundant
authority to the effect that the power should be
exercised only in what might be
described as clear cases. The onus rests with the party seeking
relief.
5 The evidence given on behalf of the plaintiffs established a
prima facie entitlement to relief. In resisting the application, the
defendant
relied on the contents of an Amended Defence and what has been described as
technical matters (largely, these involved
allegations of non-compliance with
the rules of the court).
6 The Amended Defence is a lengthy document.
Broadly speaking, it purports to throw up issues involving inter alia
allegations of
estoppel and invalid provisions (including what are said to be
penalty provisions).
7 Lengthy submissions were made on behalf of the
defendant. The court was not referred to any authority which supported the
submissions.
8 I have carefully considered the submissions. In my view,
none of the alleged defences constitute a defence to the claim made by
the
plaintiffs for possession of the premises. In my view, the material does not
throw up any triable issue. It is unnecessary
to expressly refer to each and
every argument that was put on behalf of the defendant. It suffices to merely
refer to some of them.
9 The estoppel arguments depend on proof of agency
in respect of various parties with whom the defendant dealt prior to the
granting
of the mortgage. Although I am of the view that such proof is lacking,
for present purposes I shall proceed on the assumption that
these parties were
acting as agents for the plaintiffs. Certain of the arguments were clearly
misconceived. There seemed to be
confusion and failure to distinguish between
what happened on settlement of the transaction and the mortgage itself. But
leaving
these considerations aside, the arguments were doomed to failure because
they were not supported by the evidence.
10 All but one of the provisions
said to be tainted lack relevance to the plaintiffs’ claim. Any
invalidity in those provisions
would not disentitle the plaintiffs to the relief
sought in these proceedings. Clause 4 of the mortgage (which requires the
mortgagor
to pay interest by equal monthly payments on the 13th day of each and
every month in each of every year) is relevant to the plaintiffs’
claim.
However, the material contained therein which is presently relied on by the
plaintiffs clearly could not be said to be a
penalty or otherwise
invalid.
11 The defendant’s case asserts an entitlement to
“allowances”. The said allowances appear to relate to what are
regarded by the defendant as excessive deductions made from the mortgage moneys
on settlement (including deductions made for legal
costs and fees). Whether or
not these deductions (or any of them) can be properly regarded as excessive
would not assist the defendant
in these proceedings. At best, they could give
rise to a Cross-Claim for damages.
12 The arguments which were said to
relate to technical matters can also be said to be misconceived. The questions
thrown up by the
defendant were not fully argued and the submissions made on its
behalf were not helpful.
13 It was said that the plaintiffs had failed to
comply with matters required by Pt 40 r 11 of the Supreme Court Rules
1970. These provisions apply only where there is an application for judgment
for possession of land against a defendant in his or her
absence. In this case,
the defendant was not absent. It had both appeared in the proceedings and was
represented at the hearing
by a solicitor.
14 The provisions had been
amended in 1998. The annotations which still appear in Ritchies Supreme Court
Procedure NSW are at least
in part no longer appropriate. The provisions now
deal with inter alia proof of compliance with Pt 7 r 8 (1) (b).
15 The
defendant also propounded non-compliance with requirements of Pt 7 r 8 as a
matter of defence to the claim. The purpose of these provisions is said to be
the protection of occupiers who are not parties
to the proceedings. They appear
in that part of the rules dealing with Originating Process. Non-compliance with
these provisions
may be of significance for the purposes of Pt 40 r 11. Subject
to that matter, it seems to me that they may not have been intended to provide a
defence to a defendant in possession
proceedings. Even putting these
considerations aside, the contention is hopeless for other reasons. There is no
evidence that any
party other than Mr Orehek was in occupation of the premises
at the relevant time. Be that as it may, it seems to me that the affidavit
sworn by Mr Botes does comply with the requirements of the
provisions.
16 In my view, the plaintiffs have discharged the requisite
onus. I consider that it is one of those clear cases and that the plaintiffs
are entitled to summary judgment.
17 The plaintiffs are to have judgment
for possession of the land described in paragraph 1 of the Statement of Claim.
Any claims
for costs and leave to issue a writ for possession are referred to a
Registrar. The Exhibit may be returned.
**********
LAST UPDATED:
09/10/2003
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