AFSH Nominees Pty Ltd v Quinn

I am considering a claim brought by a plaintiff mortgagee for summary judgment for possession of a secured property and of the amount of the defendant's indebtedness due under the loan agreement and mortgage as of today's date.

The statement of claim in these proceedings was filed on 18 December 2024. The plaintiff now moves on a notice of motion filed on 22 September 2025 for the relief sought. At a time when he was apparently represented by solicitors, the defendant filed a defence on 23 April 2025, but from the evidence read, which I will refer to in a moment, it is clear that the defendant is no longer legally represented. It is also clear that although the matter has been before the Court several times for directions before the Possessions List Judge, the defendant has generally not appeared.

For brief reasons I gave earlier this morning, I am satisfied that the defendant has had notice of the application for summary judgment, and I refer to the affidavit of Ms Nagam, solicitor appearing for the plaintiff today, sworn on 3 October 2025. It is clear to me that the defendant received notice, both from the Court and from Ms Nagam, of the adjourned hearing of the motion which was originally listed on 10 October 2025 but adjourned until today. I have already found that he has had a reasonable opportunity both to file any evidence upon which he proposed to rely and to appear today to resist the plaintiff’s application should he have sought to do so.

I should say, as Ms Nagam pointed out, the only issue raised in the defence filed on 23 April 2025 is whether the defendant has remedied the defaults to which I will refer in a moment. The evidence relied upon by the plaintiff includes the affidavit of Tameme Nasr affirmed on 17 September 2025 and the affidavit of Ms Nagam sworn on 18 September 2025. In respect of those affidavits, documents exhibited to the deponent at the time the affidavit was affirmed or sworn, as the case may be, have also been admitted as Exhibit TN-1 and Exhibit PN-1 respectively. Ms Nagam also read the affidavits of service of Craig Clive Brooks of 13 February 2025 and that I have already referred to of 3 October 2025.

I re-iterate that the defendant has not filed any evidence in opposition to the application. From the evidence read and from Ms Nagam's very helpful submissions, it is important to recite, although these facts do not seem to be disputed, that on 17 May 2022, the plaintiff agreed to advance the sum of $500,000 to the defendant pursuant to a loan agreement, and the funds were consequently advanced on 19 June 2022 into an account in the defendant's name.

As security for the loan, the defendant agreed to provide and did provide a registered first mortgage over the property which he signed on 19 June 2022 which was duly registered with the dealing number AH76073. It is a term of the loan agreement and the mortgage that the defendant would be in default if he: failed to pay any money which he owed the plaintiff; allowed, without the plaintiff's consent, another mortgage charge or other security over the property; did not pay all rates, taxes and outgoings in respect of the property; and allowed creditors to commence recovery action affecting the property.

I am satisfied from the affidavits that I have read that the defendant has defaulted under the terms and conditions of the loan agreement and mortgage in that he has: failed to make payments as and when they fell due; not paid all rates, taxes and other outgoings payable in respect of the property as and when they fell due; created charges over the property to secure other indebtedness, as documented in caveats lodged with the Register General appearing on title; and has suffered other creditors to commence recovery action affecting the property, including proceedings by another creditor which are currently pending in the Equity Division of this Court seeking the judicial sale of the property. In fact, over the life of the loan, as the affidavit evidence of Ms Nasr makes clear, there have been other proceedings commenced which apparently have been resolved in some way.

On 27 February 2024, the plaintiff issued a notice of default requiring repayment of arrears due in the amount of $9,386.91 which the defendant failed to remedy by the date fixed for repayment, being 5 April 2024. That was an act of default and the balance due and owing under the loan agreement and mortgage became repayable forthwith. The evidence discloses, as has been argued by Ms Nagam, that there have been other acts of default and each of the matters I have already referred to has been made good. In particular, as I have said, there have been other charges created over the property without the consent of the plaintiff and, significantly, Mr Quinn has not paid large amounts of land tax in respect of the property as and when those imposts fell due.

So far as land tax is concerned, there was a notice to the mortgagee from the Office of State Revenue dated 9 June 2022 advising that the sum of $59,922.63 was payable, and was paid in accordance with the notice, by the plaintiff as mortgagee. I should say that that is the substantial matter which the plaintiff has relied upon in addressing the parts of Mr Quinn’s defence where he asserts that he is not in default. It does seem that he may have reimbursed that amount to the mortgagee but, by the time he did so, interest and the like had accrued and there were other defaults or dishonours of payments which meant that that payment did not bring his account up to date.

More recently, and after the statement of claim was filed and served, a further notice to the mortgagee was issued on 27 June 2025 for an amount for land tax accrued since the June 2022 notice in the sum of $159,927.21 It is clear that, although that notice was received after the commencement of proceedings, for each of the financial years of 2023, 2024 as well as 2025, the defendant failed to pay his land tax and was in breach of his obligations under the loan agreement and mortgage in that regard.

The recovery proceedings brought against the defendant are brought by a subsequent creditor, GI417 Pty Limited, and are pending in the Equity Division, being matter number 2023/0200460.

I should also say that the current amount of indebtedness on the evidence is $459,196.74. Of that amount, arrears have grown to $61,452.55 and, from a consideration of the statement of account attached to Ms Nasr's affidavit, although payments have been sought by direct debit from the defendant's account, they have almost invariably been dishonoured which has not been remedied.

I am also satisfied that the plaintiff has complied with the notice requirements under the provisions of s 88 of the National Consumer Credit Protection Act 2009 (Cth), Schedule 1 (National Credit Code) and s 57(2)(b) of the Real Property Act 1900 (NSW). Notice of Default was given on 27 February 2024 and appears at p 152 of Exhibit TN-1. The defendant failed to comply with that notice to remedy his monetary default.

The only matter which seems to be raised by the defendant in relation to the issue of whether or not he is in default is the repayment he asserts he made to the plaintiff of the amount of land tax paid by the plaintiff in 2022. Other matters that he raises include complaints about the plaintiff not cooperating with attempts to sell or refinance the property, and do not go to the plaintiff's title to possession. However, having read the affidavit evidence that I have referred to, I am satisfied that the plaintiff, through its solicitors, at all times, when it was informed of either a proposed sale or prospect of refinance, acted with expedition to provide information sought and was prepared to cooperate with Mr Quinn's attempts, unsuccessful as they were, to pay out the loan by those means.

I observe that it does not make any sense for a mortgagee to fail to act with expedition in relation to such matters given the commercial imperative of obtaining repayment of the debt. In any event, I am satisfied by the evidence I have referred to, that there is no substance in the defence pleaded and that it is beyond argument that the defendant is in default, particularly monetary default but also in the other ways which I have described.

Ms Nagam referred me to the judgment of Macfarlan J in O'Brien v Bank of Western Australia [2013] NSWCA 71 at [3] where his Honour made the sometimes overlooked point that the question is not whether the defendant has pleaded a defence, but whether the facts as they appear on the hearing of the application for summary judgment disclose a pleadable defence in the circumstances.

I am satisfied that not only is the defence that has been pleaded lacking in substance but, on assessment of the circumstances fully set out in the evidence to which I have referred, there is nothing disclosed there which might give rise to a triable defence were the defendant given an opportunity to replead. Accordingly, I am satisfied that, to the high standard the law requires in cases of summary disposal, there is no triable issue.

If this matter were allowed to go to trial after the usual interlocutory steps, the outcome would be, in my judgment, obvious: the plaintiff would prove an entitlement to judgment for possession and for recovery of the amount due under the loan agreement.

Frequently, mortgagees seeking possession are content to rely upon the terms of the mortgage to recoup the indebtedness from the proceeds of sale, in due course, given that interest will continue to accrue until the property is sold and that the time of the sale is often uncertain. However, I apprehend, given the other proceedings on foot, the plaintiff in this case seeks to obtain judgment to recover the debt due. I am satisfied that the balance under the loan has fallen due given the defaults to which I have referred. I accept that the current indebtedness is in the sum of $459,196.74. That is, greater than the figure sought in the notice of motion and greater than the figure calculated in accordance with the statement attached to Ms Nasr's report. While I accept that it is consistent with the effluxion of time for figures to change and I accept Ms Nagam's assurance that it is the current amount, nonetheless I direct that a supplementary affidavit of Ms Nasr be filed to confirm that amount. I do not think it necessary to adjourn the case for that to happen.

If I have not said so already, the amount of the arrears forming part of that sum is $61,472.55. In the circumstances, I am also satisfied that the formal requirements of r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) are satisfied.

I make the following orders: