Summerland Credit Union Ltd v Lamberton;Summerland Credit Union Ltd v Jonathan [2014] NSWSC 547 (7 May 2014)

Last Updated: 12 May 2014

Supreme Court New South Wales

Case Title:	Summerland Credit Union Ltd v Lamberton;Summerland Credit Union Ltd v Jonathan
Medium Neutral Citation:	[2014] NSWSC 547
Hearing Date(s):	7 May 2014
Decision Date:	07 May 2014
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. In proceedings 2013/372820: (a) The Notice of Motion filed 29 April 2014 is dismissed; (b) The Amended Defence filed 14 April 2014 is struck out. (c) There will be judgment for the Plaintiff for possession of the land at 1411 Afterlee Road, Eden Creek, being the land in folio identifier 3/260848. (d) Leave to issue a writ of possession to enforce the judgment of the Court such writ not to be executed before Thursday 3 July 2014. (e) The Defendants are to pay the costs of the Plaintiff of those proceedings. 2. In proceedings number 2013/372819: (f) The Notice of Motion filed 16 April 2014 seeking a stay on the execution of the writ of possession is dismissed with costs.
Catchwords:	REAL PROPERTY - possession of land - alleged securitisation of debt by Plaintiff defence does not disclose any defence to claim - summary judgment entered
Legislation Cited:	Civil Procedure Act 2005 (NSW) National Credit Code (Cth) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	RHG Mortgage Corporation v Astolfi [2011] NSWSC 1526 Westpac Banking Corporation v Mason [2011] NSWSC 1241
Category:	Principal judgment
Parties:	Summerland Credit Union Ltd (Plaintiff) Debra Ann Lamberton (Defendant) Jonathan (Defendant)
Representation
- Counsel:	Counsel: T Hancock (Plaintiff) Jonathan (In person) (Defendants)
- Solicitors:	Solicitors: Collection Law Partners Pty Ltd (Plaintiff) In person (Defendants)
File Number(s):	2013/372819 & 2013/372820

JUDGMENT

1. These are two sets of proceedings which commenced on 11 December 2013 claiming possession of two properties. The first of these properties is located at 1411 Afterlee Road, Eden Creek, sometimes known as Kyogle; the other is the property located at 34 Stratheden Street, Kyogle. The properties are the security contained in mortgages dated 11 January 2010, which, in turn, secured repayments under a loan agreement dated 24 December 2009 for an amount of approximately $380,000. The loan funds were to be used to purchase the Eden Creek property.

2. The property at Eden Creek is owned by both Ms Jonathan and Ms Lamberton. The property at Kyogle is owned solely by Ms Lamberton.

3. The evidence discloses that default occurred at about the beginning of March 2013. Notices under s 57 of the Real Property Act 1900 (NSW) and the National Credit Code (Cth) were served on 7 November 2013. Those notices were not complied with and that led to the commencement of these proceedings.

4. In proceedings 2013/372819, concerning the property at Stratheden Street, Kyogle, no defence was filed to the claim. A default judgment was entered on 24 March 2013 and a writ of possession was issued on 28 March 2013. Such writ is to be executed on 14 May 2014.

5. In proceedings 2013/372820, it appears from the file that a number of Defences were filed but the present Defence is called an Amended Defence, filed on 14 April 2014.

6. The Defendants are unrepresented and have prepared this Defence themselves. The underlying theme of this Defence is that original signed documents in relation to the loans and mortgage have not been sighted by the Defendants. Nevertheless, it is apparent from documents annexed to the Amended Defence that the loan agreements were entered into and the mortgages were executed and subsequently registered.

7. Mr Jonathan admitted in his oral submissions that the Defendants were advanced credit to enable the purchase of the Eden Creek property. The documents provided with the Amended Defence disclose also the default that occurred. They also show the negotiations that were entered into, principally by email, to try to resolve the outstanding moneys. Promises were made, at various times, by the Defendants to sell one or other of the properties to enable repayment of the loan.

8. The Defence is lengthy and is not properly pleaded. It contains arguments and the annexation of documents. However, there is nothing in the Defence which discloses any defence known to the law to answer the claim for possession of the property as a result of the defaults under the loan agreement and the mortgage.

9. The Defendants have been permitted to appear by telephone today, for health reasons. The First Defendant has provided an authority from the Second Defendant enabling him to appear on her behalf and I have given him leave to do so because of the material contained in that authority.

10. In relation to proceedings 2013/372819, the First Defendant says that it was always intended that the Amended Defence filed 14 April 2014 should be a defence in respect of both of the proceedings.

11. The Defendant in those proceedings 2013/372819 (Ms Lamberton) has now, by Notice of Motion, sought that execution of the writ of possession be stayed. An affidavit has been filed in support of that matter by Mr Jonathan which deals with some of the procedural history.

12. Mr Jonathan, in his oral submissions today, denies that any documents were served upon the Defendant Ms Lamberton in those proceedings. He says that the only documents which were served on her related to proceedings 2013/372820. However, there is no affidavit to that effect from Ms Lamberton. Mr Jonathan in his affidavit sworn 24 April 2014 says only:

12. I, Jonathan©"TM" am no aware of any documents relating to case number 13/372819 being lawfully served on Debra Ann Lamberton©"TM" in Adelaide or at her tenanted address in 34 Strateden St Kyogle or on the man I am.

13. I have an affidavit of service of Trevor Hollister dated 24 February 2014 which swears to the service on Ms Lamberton of the Statement of Claim and the Notice to Occupier in proceedings 2013/372819.

14. Nevertheless, if the Defendants, in their Amended Defence in proceedings 2013/372820, had disclosed a defence that is known to the law I would have given consideration to staying the execution of that writ until a proper application was made to set aside the default judgment based upon such a defence. However, as I have indicated, the Defence which has been filed does not disclose any defence known to the law.

15. In addition to the matters that are contained in that Defence, but which are indirectly referred to in other documents annexed to it, Mr Jonathan has raised the issue of an alleged securitization by the Plaintiff of the loan. Despite that allegation, Mr Jonathan has annexed, amongst his documents, emails from the Plaintiff denying that there has been any securitization of the loan. Even if there has been, the authorities demonstrate that that is no bar to the original lender bringing the proceedings to enforce the loan: Westpac Banking Corporation v Mason [2011] NSWSC 1241 at [29]; RHG Mortgage Corporation v Astolfi [2011] NSWSC 1526 at [13]- [14].

16. Mr Jonathan has drawn my attention to a number of other documents that he has annexed to the Amended Defence, being the documents at pages 6 to 26 of the annexures. I am perfectly satisfied that those documents do not disclose any defence known to the law.

17. Mr Jonathan challenges the jurisdiction of the court and further asserts, amongst other things, that because it is a common law matter there should be a trial by Jury. This demonstrates a misunderstanding of the way the common law and statute law work together. The Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) govern proceedings in this court. A Jury is not required for the determination of claims for possession. In any event, no application under r 29.2 has been made.

18. For these reasons the Amended Defence of 14 April 2014 must be struck out.

19. Despite my best endeavours, I have not managed to ascertain from Mr Jonathan any other indication of another defence that is known to the law. I can see no purpose in adjourning these proceedings or giving leave to the Defendants to file any further Amended Defence in those circumstances.

20. The Defendants have filed a Notice of Motion in proceedings 2013/372820 seeking a stay of execution of a writ of possession. There is no writ of possession in this matter because judgment has not hitherto been entered. That Notice of Motion is misconceived.

21. Accordingly, I make the following orders:

1. In proceedings 2013/372820

(a) The Notice of Motion filed 29 April 2014 is dismissed;

(b) The Amended Defence filed 14 April 2014 is struck out.

(c) There will be judgment for the Plaintiff for possession of the land at 1411 Afterlee Road, Eden Creek, being the land in folio identifier 3/260848.

(d) Leave to issue a writ of possession to enforce the judgment of the Court such writ not to be executed before Thursday 3 July 2014.

(e) The Defendants are to pay the costs of the Plaintiff of those proceedings.

2. In proceedings number 2013/372819

(f) The Notice of Motion filed 16 April 2014 seeking a stay on the execution of the writ of possession is dismissed with costs.

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