Secure Funding Pty Ltd v Johnson (No 2)

[2023] NSWSC 388

Supreme Court

New South Wales

Medium Neutral Citation:	Secure Funding Pty Ltd v Johnson (No 2) [2023] NSWSC 388
Hearing dates:	28 April 2023
Date of orders:	28 April 2023
Decision date:	28 April 2023
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Judgment for the Plaintiff for possession of the whole land described in Certificate of Title Folio Identifier Lot 6 in Deposited Plan 10643 the postal address of which is XXX Maud Street, Cardiff South NSW 2285.
Catchwords:	LAND LAW – possession of land – default under mortgage
Legislation Cited:	Nil
Cases Cited:	Secure Funding Pty Ltd v Johnson [2023] NSWSC 312
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Secure Funding Pty Ltd (Plaintiff) Dianne Ruby Johnson (First Defendant) Christian Richard Johnson (Second Defendant)
Representation:	Counsel: O Newman (Plaintiff) No appearances (Defendants) Solicitors: Norton Rose Fulbright (Plaintiff) Unrepresented (Defendants)
File Number(s):	2022/272191
Publication restriction:	Nil

Judgment

1. These proceedings commenced on 12 September 2022, seeking judgment for possession of a property in Maud Street, Cardiff, and judgment for a debt due under a loan agreement entered into by the defendants, Diane Ruby Johnson and Christian Richard Johnson, on 13 November 2006. The first defendant, Diane Ruby Johnson, who was the registered proprietor of the property, provided a mortgage to secure the obligations under the loan agreement.

2. On 6 April 2023, I granted leave to the plaintiff to substitute the NSW Trustee and Guardian for Diane Ruby Johnson, who had died on 18 September 2021, unbeknownst the plaintiff when the proceedings were commenced. I also gave leave to the plaintiff to amend the statement of claim to reflect the change in the identity of the first defendant: Secure Funding Pty Ltd v Johnson [2023] NSWSC 312.

3. Shortly before those order were made, Christian Richard Johnson died in January or February 2023. The evidence is conflicting about the precise date of Mr Johnson’s death. He was not, however, a registered proprietor of the land and, in those circumstances, any claim against Mr Johnson in debt would need to be made against the administrator of his estate. The plaintiff does not intend to proceed further in the matter against Mr Johnson.

4. The plaintiff now seeks only possession of the land. It does so on the basis of evidence given in an affidavit of Santina Cacciola, who is an asset realisation officer of the plaintiff. That affidavit discloses that a default relevantly occurred in June 2022 under the terms of the loan agreement and has not since that time been rectified. Clause 20 of the memorandum incorporated into the mortgage identifies default occurring inter alia as when the amount owing to the plaintiff is not paid. Clause 23.1 of that memorandum entitles the mortgagee on default to take possession of the property.

5. An affidavit of Gavin Bellamy of 3 October 2022 demonstrates service of a notice to occupier on a person named Gary Plazier, who was then in occupation of the property. Mr Plazier is the son of Diane Johnson.

6. I directed that the amended statement of claim and notice of the orders made on 6 April 2023 was to be served on Mr Plazier. Proof of that service is contained in the affidavit of Paul Sternbeck of 20 April 2023. I also directed that a sister of Christian Richard Johnson, who had been assisting the plaintiff with information, also be served with the amended statement of claim and notice of the orders. I am satisfied that Mr Johnson’s sister has also been served.

7. I am satisfied that the NSW Trustee and Guardian has been duly served. The NSW Trustee and Guardian informed the plaintiff’s solicitors that it does not intend to appear.

8. There was no appearance by Mr Plazier when the matter was called outside the Court today. No application has been made by him to be joined to the proceedings.

9. As I noted in my earlier judgment, Mr Plazier had filed with the Court a notice of intended application for probate on 15 March 2023. Subsequent inquiries made by those acting for the plaintiff ascertained that Mr Plazier ceased to instruct the solicitor he then engaged, and no application for probate of Diane Johnson’s will has been made.

10. In those circumstances, the plaintiff is entitled to possession of the land. I make the following order:

Judgment for the plaintiff for possession of the whole land described in certificate of title, folio identifier lot 6 in deposited plan 10643, the postal address of which is XXX Maud Street, Cardiff South, NSW 2285

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