Psal Pty Limited v Deborah Ann Stellason

EX TEMPORE Judgment

1. [1]

   HIS HONOUR: The Court has before it an application for summary judgment in the following circumstances. The plaintiff is a second mortgagee. The first mortgagee has already obtained possession of the land to which the mortgage relates. An amount of money is sought pursuant to the statement of claim filed in this Court.

2. [2]

   There is some issue as to whether a defence has ever been filed, but taking the defence position at its highest and assuming, without deciding, that a defence has been filed, it would have had to have been filed some time in July of this year in order to comply with orders and directions already in force.

3. [3]

   In effect, the defence seeks an indulgence, to use the expression of counsel, to allow refinancing. In ordinary circumstances, the Court would be more than willing to allow an indulgence if it were satisfied that such an indulgence would effect a resolution of the matters.

4. [4]

   Obviously the Court does not want to put people out of their home, particularly this close to Christmas, in circumstances where there is an alternative that overcomes the difficulties faced by the plaintiff. In this case, the Court order does not put the defendant out of her house. Possession is already in the hands of the first mortgagee.

5. [5]

   No defence has been filed which qualifies the payment of the debt or disputes the quantification of any debt. No evidence has been filed by the defendant disputing the quantification of the debt by the plaintiff.

6. [6]

   Obviously these orders will take some time to be enforced in any event, which in one sense gives the defendant a short further indulgence, if indulgence be the right term. However, what is before the Court is an undeniable debt, a right to claim it and circumstances where there has been a significant indulgence and delay already in seeking any further indulgence.

7. [7]

   In the circumstances, the Court grants summary judgment to the plaintiff and makes the following orders:

   1. (1)

      Pursuant to r 13.1 of the Uniform Civil Procedure Rules, the Court grants summary judgment to the plaintiff against the defendant in the sum of $95,547.74;

   2. (2)

      The defendant shall pay the plaintiff costs of these proceedings on an indemnity basis;

   3. (3)

      These orders may be entered forthwith.