Apartment Holdings Pty Limited & Ors v Chahl & Anor

This is a matter where a second or subsequent mortgagee, by a notice of motion dated 29 August 2025, is seeking summary judgment for possession of a mortgaged property of which the defendants are the registered proprietors.

Mr Rogers of counsel appears for the mortgagee, and Ms Williamson, who is the second defendant named in the pleadings as Rathari Janet Chahl, has informed me that she has authority to also appear on behalf of the first defendant who she tells me is her father and who is very elderly. I accept that explanation and have granted Ms Williamson leave to appear.

The matter came before me for hearing last week on 7 November 2025, and I received the affidavit evidence read on behalf of each of the parties. At that time, Ms Williamson was resisting the plaintiffs’ application for summary judgment. However, after a short discussion, and perhaps at my suggestion, it became apparent that Ms Williamson has obtained legal representation in relation to other separate but somewhat related matters. Accordingly, I adjourned the matter for further hearing until today, to enable Ms Williamson the opportunity to obtain advice about this matter on behalf of herself and her father.

At the resumption of the hearing today, Ms Williamson told me from the Bar table that she has taken such advice, and without disclosing the confidential specifics of that advice given to her by her solicitor, she informs me that she has decided it is in her best interests to no longer resist the summary judgment application brought by the plaintiffs. Further, she informs me that she is prepared to consent to the defence being struck out and judgment being entered for the plaintiffs for possession.

Mr Rogers has pointed out to me that, given the position of the first defendant, who is not here personally to signify his consent, that he wishes to proceed with the application. I accept that the second defendant, as she told me, has her father's authority to appear, but for abundant caution, I am prepared to deal with the matter in the exercise of my powers under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

I should say that, on the basis of the defence filed by Ms Williamson on 11 August 2025, there are a number of issues sought to be raised. The first issue relates to the question of whether the plaintiffs are the entity who advanced the loan to a corporation of which Ms Williamson is an officer, secured by guarantee of the defendants and a mortgage over a property owned by them. I am satisfied to the high standard that is required in the case of applications for summary judgment that that ground raised in the defence will fail.

In coming to that conclusion, I have relied upon my view of the evidence, and also upon the reasoning of Wright J in Oclee Holdings Proprietary Limited v Palace Property Proprietary Limited; Zhou v TJ and Associates Proprietary Limited [2025] NSWSC 116. I should indicate that that case involved properties in respect of which Ms Williamson, either in her own personal capacity or through corporate entities she controlled, had an interest. She appeared by leave on behalf of the mortgagors in each matter. Mr Rogers appeared for the plaintiffs in each matter.

When the matter was called before me last week, reference was made to that case, and Ms Williamson indicated to me that she assumed that I would deal with that issue in a similar way to Wright J. With respect, that was a perceptive assumption.

Although the loan offer was conveyed by Baccus Investments Limited (Baccus), it was made in express terms in a limited capacity as manager of the Kremnizer Mortgage Fund (the fund). The offer also indicated that the actual lender would be an as-yet-unnamed member of the fund.

On an objective assessment, it was clear from the letter of offer itself that the offer was conveyed by Baccus in a limited capacity and the defendants indicated their acceptance by ascribing their signatures to the acceptance page.

As Mr Rogers has pointed out, the identity of the actual members of the fund, who were the mortgagees, was identified in the form of the mortgage that became registered on the title. And even were there some doubt about the parties to the contract for the loan, the named mortgagees have the benefit of the principle of indefeasibility of title, pursuant to s 42 of the Real Property Act 1900.

However, I am satisfied that, for the reasons I have outlined very briefly, it is clear that the actual parties, or the actual offerors, under the loan contract are the persons named, that is to say, the corporate entities and individuals named as the twenty plaintiffs in this case, as a matter of legal construction of all of the contractual documents, and applying the objective theory of contract as required by the common law in Australia. That ground of defence cannot stand. I also note that in this matter, there is no cross-claim.

The second ground of the defence propounded by the defendants, which, I apprehend, was drafted by Ms Williamson without the benefit of legal counsel, is the deed of priority entered into at the time the mortgage was executed, acknowledging the priority of the first mortgagee, Westpac Banking Corporation (Westpac). The deed is seemingly relied upon in two ways.

First, it is relied upon to support an argument that the second mortgagee is not entitled to exercise a power of sale because the first mortgagee has priority. With respect, that is a misconception. The first mortgagee is entitled to be paid out first, and that priority is maintained. But the priority of a first mortgagee does not in any way infringe the right of the second mortgagee to exercise its power of sale, and in the case of default as has occurred here, in relation to repayment of the interest and repayment of the principal when it fell due.

Secondly, the defendants rely upon the deed of priority is further to the first contention relating to Westpac’s status as the first mortgagee, by asserting that because the loan with Westpac, that is to say, the loan advanced to the defendants as registered proprietors of the property, is covered by the National Consumer Credit Protection Act 2009 (Cth), Schedule 1 (the National Credit Code or the Code) so too should the defendants’ loan. It follows from that point, that the defendants also argue that the protective provisions of the National Credit Code have not been complied with in respect of the loan.

As Mr Rogers makes clear, as the primary borrower was a corporation controlled by Ms Williamson and her father, and their status in relation to this loan is that of guarantors, the National Credit Code does not apply, and to that extent the defence would fail.

There are other complaints made about the conduct of other entities who may or may not be members of the mortgage fund. But, as I have said, there is no cross claim in respect of their conduct nor attempt to join any of them as parties to these proceedings. To the extent to which other lenders in respect of other properties within Ms Williamson's and her father's extensive portfolio have caused a grievance on their part, that is not a matter which affects the current proceedings. And it in no way, with respect, affects the title of the plaintiffs as mortgagee in respect of the property, and the right to exercise the powers of sale arising in the case of default.

Finally, Ms Williamson has raised the conduct of the tenant of the subject property, and there is an allegation contained in the defence that the tenant is working in collusion with the manager of the mortgage fund, in as much as he is paying his rent directly to Baccus on behalf of the mortgagees, and is making it difficult for the defendants to gain access to the property for the purpose of making it ready for sale.

Having read the evidence in these proceedings very carefully, there is nothing whatsoever contained therein which would be suggestive of any fraudulent collusion or otherwise between the tenant and Baccus, bearing in mind Baccus is not a party to the proceedings. But to the extent to which it is the manager of the fund, there is no evidence to support that allegation either.

I should say that the conduct of the tenant has been a source of aggravation for Ms Williamson, and I have read the affidavit of the agent that she wished to engage to sell the property, without the mortgagee going into possession. In the agent’s opinion, the tenant's conduct and the nature of his occupation in relation to the property is depreciating the value of the property very significantly.

Part of the defence has been built on that desire of Ms Williamson to be in control of the sale herself, and one can understand that. However, the conduct of the tenant, as I have said, does not constitute a defence to the claim of the mortgagee, and Ms Williamson, from what she has told me this morning, now accepts that, given the advice she has received which I infer covers the rights of the mortgagee under the provisions of the Residential Tenancies Act 2010 (NSW). She accepts that the mortgagee may be more effective in achieving both the termination of the lease and the eviction of the tenant, if an order is made for possession. I infer that is part of her thinking in relation to her consent to the orders sought by the plaintiffs.

There is no issue that, as I have said, the defendants are in default. There is no issue that the plaintiffs have complied with the necessary terms of the mortgage and with the Real Property Act 1900 (NSW) in bringing the default to the attention of the registered proprietors, and to provide them an opportunity for the default to be remedied.

I am satisfied that there is no triable issue raised by the defence filed on behalf of the defendants, and I propose to make orders striking it out.

It also seems to me, for the reasons I have rehearsed, that there is no triable issue in this matter, and that the plaintiffs' cause of action has been well established by the evidence read. I am of the view that this is one of those cases, notwithstanding the caution required before making an order for summary judgment, where I can say that I am satisfied that, were the matter to proceed to trial, the outcome is of a sufficiently high degree of certainty that summary judgment should be granted.

I make the following orders: