Farrow Mortgage Services Pty Ltd v Aouad [1991] QSC 6

S:0 91 /oo 6 ?0 1A.~ IN THE SUPREME COURT ' OF QUEENSLAND No. 1907 of 1990 BETWEEN: FARROW MORTGAGE SERVICES PTY. LTD. Plaintiff ROBERT AOUAD Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the thirty-first day of January, 1991 In this case the applicant plaintiff seeks to recover possession of certain real property which is the subject of a registered first mortgage in favour of the applicant plaintiff. Mr. Sheaffe of counsel who appears for the respondent defendant submits that the affidavit of one Priddle does not sufficiently depose to the essential elements that give rise to the cause of action in order to satisfy the requirements of Order 18. What are the elements of the action giving rise to a right of possession? In my view, they are:- 1 . 2. 3. Proof of the existence of a valid stamped security over the subject property; Default of any of the obligations contained in the security documents; The giving of an appropriate notice pursuant to eitherthe security or the relevant law namely the Property Law Act Queensland. The affidavit of Priddle clearly does not exhibit the loan agreement which the mortgage or security document seeks to incorporate into itself. In other words, the terms of the loan agreement are not before me and they are not deposed to. -- 1 of 3 -- Mr. Matthews of counsel who appears for the applicant plaintiff informs me that the basis for the application and in other words, the particulars of default are:- 1. A failure to pay interest as it falls due and owing; 2. A failure to repay the principal sum advanced consequent upon the failure to pay interest; 3. The appointment of the receiver. Mr. Sheaffe countered that argument that the appointment of a receiver (albeit by the applicant plaintiff itself) does not in itself found a right to possession. It asserts that indeed it is the default which leads to the right to appoint the receiver that founds the right to possession. I have been referred to the Queensland decision of Wanstall J. in The Australia and New Zealand Bank Ltd. v. Maile and Ors. in 1965 Q.W.N. 28 wherein the learned Judge (as he then was) followed Suburban Homes Pty. Ltd. v. Ward and refused to give summary judgment on a claim for monies due and owing under a debt of guarantee where the guarantee is not exhibited to the affidavit in support of summary judgment. A close reading however of the case which the learned Judge followed mainly Suburban Homes Pty. Ltd. v. Ward 1928 V.L.R. 267 clearly establishes that Suburban Homes Pty. Ltd. v. Ward was indeed an instance of a Judge in Chambers requiring proper and detailed proof of a money claim where the same money claim arose out of a relatively complicated set of facts and where proof was thus required of the actual sum due and owing. Here, on the other hand, in my view the facts are relatively simple and are susceptible of sufficient and adequate proof (particularly in the absence of any attempt to place any of these facts in issue) by the material deposed to in the affidavit of Priddle. It is not contested that default has occurred in the -- 2 of 3 -- l payment of interest. It is not contested that default has occurred in the accelerated payment of capital. It is not contested that a receiver has been appointed and indeed Mr. Sheaffe concedes that the receiver has been appointed and no attempt has been instituted to set aside such an appointment as being unlawful or invalid. Accordingly, in my view all the elements of the requisite cause of action have been demonstrated and verified by the affidavit of Mr. Friddle and accordingly I give judgment for the plaintiff against the defendant in terms of the draft order initialled by me and placed with the papers. -- 3 of 3 --