Secure Funding Pty Ltd v Linienko (No 3)

[2023] NSWSC 1125

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Linienko (No 3) [2023] NSWSC 1125

Hearing dates:

15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff against the second defendant for $334,550.06.

2. Interest is payable on the judgment at the rate or rates applicable under the loan and mortgage.

3. Grant leave to issue a writ of possession to enforce the judgment entered on 18 April 2023.

4. The second defendant pay the plaintiffs costs.

Catchwords:

LAND LAW – possession of land – where judgment previously given for possession of land – where parties agreed defendant could sell land under certain conditions – where agreement not complied with by defendant – where no appearance filed by defendant – plaintiff entitled to default judgment for amount owing – leave to issue writ of possession

Legislation Cited:

Nil

Cases Cited:

Secure Funding Pty Ltd v Linienko [2023] NSWSC 224

Secure Funding Pty Ltd v Linienko (No 2) [2023] NSWSC 386

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Secure Funding Pty Ltd (Plaintiff)
Estate of Svetlana Anita Linienko (First Defendant)
Dhana Henry Robinson (Second Defendant)

Representation:

Counsel:
S Erikozu (Plaintiff)
No appearance (First Defendant)
No appearance (Second Defendant)

Solicitors:
Norton Rose Fulbright (Plaintiff)
Unrepresented (Defendants)

File Number(s):

2022/289653

Publication restriction:

Nil

Judgment

1. In these proceedings the plaintiff sought possession of a property in Judith Anderson Drive, Doonside. It did so in reliance on a mortgage given by the second defendant and a woman named Svetlana Anita Linienko.

2. The factual background is set out in my judgment given on 18 April 2023 in Secure Funding Pty Ltd v Linienko (No 2) [2023] NSWSC 386. Ms Linienko was previously named as the first defendant, but she died shortly before proceedings were commenced, unbeknownst to the plaintiff. On 15 March 2023, I made orders under the Uniform Civil Procedure Rules 2005 (NSW) for the NSW Trustee and Guardian to be substituted for the first defendant by reason of her death: Secure Funding Pty Ltd v Linienko [2023] NSWSC 224.

3. There is no appearance by the first defendant, the NSW Trustee and Guardian. The NSW Trustee and Guardian has informed the Court previously that it considers itself to be a passive recipient of process and is not obliged to take any active steps in relation to the matter.

4. On 18 April 2023 I gave judgment for the plaintiff for possession of the land. I stood the proceedings over because the second defendant appeared in person. He said that he was prepared to agree to the plaintiff selling the land in circumstances where he, without the consent of the plaintiff, had entered into a contract to sell the property. He also had solicitors acting for him, although no notice of appearance was filed by them, nor did they appear in Court..

5. The plaintiff agreed that the proceedings could be adjourned to see if some arrangement could be reached about who should sell the property and for what price. An agreement was subsequently reached in relation to the sale of the property, but it was not complied with on the part of the second defendant by the date specified in the agreement. The agreement is set out in the affidavit of Sera Erikozu of 14 September 2023.

6. In those circumstances, the plaintiff now seeks a writ to enforce the judgment for possession and also seeks a judgment for the amount owing under the loan facility which was secured by the mortgage. By reason of no appearance having been filed for the second defendant, the plaintiff now seeks default judgment. There was no appearance for the second defendant today.

7. I am satisfied from the evidence in the affidavit of Tuan Minh Tran, the Asset Realisation Officer of the plaintiff, of the amount owing under the loan agreement, and that other matters required to be demonstrated by r 16.4 of the Uniform Civil Procedure Rules 2005 (NSW) have been complied with.

8. Accordingly, I make the following orders:

1. Judgment for the plaintiff against the second defendant for $334,550.06.

2. Interest is payable on the judgment at the rate or rates applicable under the loan and mortgage.

3. Grant leave to issue a writ of possession to enforce the judgment entered on 18 April 2023.

4. The second defendant pay the plaintiffs costs.

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