Dorothy Armstrong Pty Ltd v Maryvell Investments Pty Ltd [2002] VSC 189

5. The defendant, Maryvell Investments Pty Ltd, was at all material times the registered proprietor of the property. By an instrument of mortgage dated 10 February 1998 and numbered V329431V in the Office of Titles, the defendant mortgaged the land to the plaintiffs to secure payment of an advance of $470,000 lent or agreed to be lent by the plaintiffs to the defendant, together with the interest thereon.

8. It was a term of the mortgage that the defendant would pay to the plaintiffs the moneys secured and interest on 10 February 2000. The defendant failed to comply with its obligation in that regard and on 10 October 2000 the plaintiffs filed a writ in the court whereby they sought possession of the property.

11. In its defence filed in the court on 15 November 2000 the defendant admitted that it was the registered proprietor of the property, it admitted that it mortgaged the land to the plaintiffs to secure payment of an advance of $470,000, and it admitted that it was a term of the mortgage that it would pay the moneys secured by the mortgage to the plaintiffs on the due date, namely, 10 February 2000.

14. The defendant, however, went on in its defence to plead that there was a further, later agreement between the parties entered into by them in about October-November 1999, whereby it was agreed that the mortgage would be rolled over for a period of two years on the same terms and conditions as the mortgage. The existence of such an agreement is denied by the plaintiffs.

17. However, the fact of the matter is that the moneys due under the mortgage have still not been repaid to the plaintiffs, nor has any interest been paid to the plaintiffs since

23. On any view of the matter, the defendant is in default under the mortgage. In that situation, and pursuant to the provisions of s.78 of the Transfer of Land Act, the plaintiffs are clearly entitled to possession of the property. See Commonwealth Bank of Australia v. Jackson & Anor. (1992) V.Conv.R. 65,223. I can find no basis upon which to uphold the defendant's appeal in this case.

26. I should add that since the summons for possession was filed in the court on 20 July 2001, it was adjourned on numerous occasions at the request of the defendant to enable the defendant to take steps to re-finance the mortgage, but obviously that did not occur.

29. When this appeal came before me on 3 May 2002, the defendant was represented by a solicitor. I should say in that regard that, if my perusal of the court file is at all accurate, the firm acting for the defendant on that occasion was about the seventh firm of solicitors that the defendant had engaged on its behalf since the writ in this matter was filed in the court in October 2000.

32. There was no appearance on behalf of the defendant through a solicitor this morning. I notice that the solicitor who did appear before me on its behalf on 3 May filed a notice in the court that it had ceased to act for the defendant on 13 May.

35. Mr Con Velesaris did appear before me on behalf of the defendant this morning. He maintained that he had a power of attorney from a director of the defendant. I gave him an opportunity to place before the court any material he wished to in relation to the matter, but what he did say to me on behalf of the defendant in no way dissuades me from the view I have formed in the case, that is, simply, that the defendant has no answer to the plaintiffs' claim for possession of the property and that in that event its appeal must be dismissed.

38. I order that the defendant's appeal be dismissed with costs to be taxed, including any reserved costs, and paid by the defendant.

I certify that this and the 2 preceding pages are a true copy of the reasons for Judgment of Beech of the Supreme Court of Victoria delivered on 15 May 2002.