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[2025] NSWSC 1116
General information, not legal advice.
Supreme Court of NSW
2025-09-25
Wright J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Oclee Holdings Pty Limited v Palace Property Pty Limited; Zhao v TJW & Associates Pty Limited [2025] NSWSC 1116
Hearing dates: 12 and 25 September 2025
Date of orders: 25 September 2025
Decision date: 25 September 2025
Jurisdiction: Common Law
Before: Wright J
Decision: In proceedings 2025/00181721, Oclee Pty Ltd v Palace Property Pty Ltd:
(1) Judgment for the plaintiffs for possession of whole of the land described in folio identifier B/161543 and 4/164485 being the land situated at and known as 98 Close Street, Morpeth in the State of New South Wales (the Property).
(2) There be leave for the issue of a writ of possession of the Property forthwith.
(3) Otherwise the notice of motion filed on 8 August 2025 is dismissed.
(4) List the matter before the Registrar on 19 November 2025.
In proceedings 2025/00150437, Zhao v TJW & Associates Pty Ltd:
(1) Judgment for the plaintiffs for possession of whole of the land described in folio identifier 10/669252 being the land situated at and known as 315 High Street, Maitland in the State of New South Wales (the Property).
(2) There be leave for the issue of a writ of possession of the Property forthwith.
(3) Otherwise the notice of motion filed on 8 August 2025 is dismissed.
(4) List the matter before the Registrar on 19 November 2025.
Catchwords: CIVIL PROCEDURE – summary disposal – summary judgment for possession sought by plaintiffs – no issue except whether the plaintiffs were parties to the mortgage and deed of loan – term in mortgage and deed of loan permitting the names of the persons who actually advanced the loan funds to be inserted in the mortgage and deed of loan documentation before the advance of the funds – where evidence established that plaintiffs advanced funds to borrower – on the proper construction of the mortgage the persons who advanced the funds were mortgagees under the mortgage and entitled to sue as plaintiffs – where borrowers accepted they were obligated to repay principal and pay interest and these obligations were secured by the mortgage – no dispute as to default in payment of principal or interest – summary judgment for possession ordered
Legislation Cited: Real Property Act 1900 (NSW), s 60
Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited: Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125; [1964] HCA 69
Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Timelio Pty Ltd v Petris [2024] VSCA 17
Category: Procedural rulings
Parties: In proceedings 2025/00181721, Oclee Pty Ltd v Palace Property Pty Ltd:
Oclee Holdings Pty Ltd ACN 001 532 672 (First Plaintiff)
Peter Edmund Daal (Second Plaintiff)
Glenda Daal (Third Plaintiff)
Bergen Investments Pty Ltd ACN 104 177 148 (Fourth Plaintiff)
Andrew Mark Van Bergen (Fifth Plaintiff)
MK Holton Investments Pty Limited ACN 145 574 723 (Sixth Plaintiff)
David Maurice Glaser (Seventh Plaintiff)
Roslyn Glaser (Eighth Plaintiff)
Matthew James Van Bergen (Ninth Plaintiff)
Palace Property Pty Ltd ACN 167 530 681 (Defendant)
In proceedings 2025/00150437, Zhao v TJW & Associates Pty Ltd:
Yu Zhao (First Plaintiff)
Roslyn Glaser (Second Plaintiff)
David Maurice Glaser (Third Plaintiff)
NBVR Pty Ltd ACN 608 549 462 (Fourth Plaintiff)
Denise Alison Tollis (Fifth Plaintiff)
Thierry Edouard Tollis (Sixth Plaintiff)
Douglas_Molyneux Pty Ltd ACN 604 249 729 (Seventh Plaintiff)
Darren Gerard Budd Jansze (Eighth Plaintiff)
Noreen Gillian Mary Jansze (Ninth Plaintiff)
Judith Ann Carlon (Tenth Plaintiff)
Yanqiu Feng (Eleventh Plaintiff)
Renske Hoekstra (Twelfth Plaintiff)
Robert John Stocken (Thirteenth Plaintiff)
Andrew Mark Van Bergen (Fourteenth Plaintiff)
Ling-Hui Chiang (Fifteenth Plaintiff)
Jim Rostron (Sixteenth Plaintiff)
CX One Pty Ltd ACN 639 746 811 (Seventeenth Plaintiff)
Geoff Horne (Eighteenth Plaintiff)
Evelyn Burnie (Nineteenth Plaintiff)
Yue Yu (Twentieth Plaintiff)
TJW & Associates Pty Ltd ACN 123 436 108 (Defendant)
Representation: T Williamson, by leave, for the Defendant in each proceedings
Counsel:
A Rogers (Plaintiffs in each proceedings)
Solicitors:
Baccus Investments Limited (Plaintiffs in each proceedings)
File Number(s): 2025/00181721; 2025/00150437
These two matters came before me as Duty Judge on 12 September 2025 for the hearing of notices of motion filed by the plaintiffs in each matter seeking summary judgment for possession and other relief against the respective defendants. It was not in dispute that each defendant had borrowed money which was funded by the plaintiffs, that repayment of principal and interest was secured by a mortgage over land of the relevant defendant and that each defendant had defaulted on its obligations to pay interest and, in one case, the defendant had also defaulted on its obligation to repay the principal.
Mr Rogers of counsel appeared for all the plaintiffs in both matters. Ms Williamson, who was a director of each of the defendant corporations, was given leave to represent both defendants at the hearing, without any opposition from Mr Rogers.
The only substantive issue in each case was who were the parties to the relevant mortgage who became entitled to possession as a result of default by the borrower. Since each case raised the same issue, the matters were heard together and it is appropriate to deal with both matters in one judgment.
After I had reserved my decision on 12 September 2025, I became aware of an issue as to the identity of the persons who advanced the funds under the loans which I had my Associate raise with the parties by email. As a result, the plaintiffs in each matter sought to supplement their evidence by relying in each case on a further affidavit of Ms Rhonda Galayini sworn on 22 September 2025 annexing documentation establishing the particular companies and individuals who advanced the funds in respect of each relevant loan. Ms Williamson submitted that no substantial reliance should be placed on this documentation because it did not purport to be audited and it did not appear to be supported by other documentation. There was, however, no dispute that the funds were advanced and, having regard to what is recorded on the face of the documentation, there did not appear to me any reason to doubt that they are genuine business records of the Kremnizer Mortgage Fund operated by Baccus Investments Limited. Nor was there any reason to doubt that they constitute a reliable record of the companies and individuals who, together, contributed the funds advanced to each of the two defendants. I accept that this documentation establishes which companies and individuals were the actual lenders in each case. It can be noted at this point that this documentation confirms what was disclosed in the affidavits verifying both statements of claim. Those verifying affidavits were sworn or affirmed by each of the individual plaintiffs and on behalf of each of the corporate plaintiffs.
There was no cross-examination of any witness and there was, in effect, no dispute as to what the evidence established.
Palace Property Pty Limited (Palace) is currently the registered proprietor of Lot B in Deposited Plan 161543 and Lot 4 in Deposited Plan 164485, together known as 98 Close Street, Morpeth, New South Wales (Close Street). In August 2024, in order to purchase Close Street, Palace sought finance through Baccus Investments Limited (Baccus).
On 9 August 2024, Baccus sent a letter to Bayside Mortgages (which I infer was acting on Palace’s behalf). The letter was headed “Amended Indicative Loan Offer to Palace Property Pty Ltd” and enclosed an “Indicated Loan Offer” and a “Loan Application Form” as well as including a checklist of items which were required to be provided before the loan application could be processed, namely a signed Indicated Loan Offer, signed Application Documents, being a Loan Application Form and Privacy Act Consent Form, and a deposit.
On 14 August 2024, Ms Willamson signed the Amended Indicative Loan Offer and the Privacy Act Consent. On the same day, Ms Williamson and Dr Jaswant Chahl, in their capacity as directors of Palace, signed a completed loan application form in which they provided relevant details concerning Palace and themselves. A loan of $1.17 million for 12 months was sought in order to finance the purchase for $1.8 million of Close Street by Palace as an investment property. The information provided in that form also included that the assets of the directors or corporations associated with them included eight properties said to be worth $35.1 million and that there were various loans from Baccus, La Trobe, Westpac, Pacific 8, RAMS and Resimac Finesecure totalling $21.3775 million in respect of those eight properties.
On 16 August 2024, Baccus sent to Palace a document headed “Kremnizer Mortgage Fund – Loan Offer” which informed Palace that its application for a loan had been approved and stated that the loan was “now offered to you by Baccus Investments Limited (as Manager for the Kremnizer Mortgage Fund) on the terms as set out [in the letter]”. Those terms included, inter alia:
| “Period of Loan | 12 Months (‘The Term’) | | … | | | Lender: | The Mortgagee is: A Member of the Kremnizer Mortgage Fund | | Mortgagee’s Solicitor: | Baccus Investments Limited – Legal Department. …”. |
On 21 August 2024, Ms Williamson and Dr Chahl accepted the loan offer by signing the “Kremnizer Mortgage Fund – Loan Offer” document as directors of Palace both in its capacity as the borrower and in its capacity as the mortgagor. They also signed that document in their own rights as guarantors. On the same day, Ms Williamson and Dr Chahl:
executed a Deed of Loan in their capacity as directors of Palace;
executed a Deed of Guarantee in their personal capacities;
executed a Mortgage in respect of Close Street, in their capacity as directors of Palace.
Clause 1 of the Deed of Loan and of the Deed of Guarantee provided that the respective deeds were to be interpreted as though all of the provisions set out in New South Wales Registered Mortgage Memorandum No. AT591083P were set out in at length in the deed. Clause 2 of each deed provided that the definitions in the Memorandum were altered so that, inter alia, “‘Schedule’ means the schedule to this Deed” and “‘Mortgagee’ means the Lender”.
The Mortgage named Baccus as the mortgagee and provided in cl (b)(i) and (ii) that the mortgage incorporated Registered Mortgage Memorandum No. AT591083P but the parties agreed that the terms of the Deed of Guarantee would take precedence over the terms of the Mortgage to the extent of any inconsistency.
Details of the relevant loan were set out in a schedule to each of the Deed of Loan, the Deed of Guarantee and the Mortgage. The schedules to each of those documents were relevantly identical and in each of those schedules:
the “Advance Date”, “Expiry Date” and “First Instalment Due” were left blank;
the “Lender/s” was specified as “Baccus Investments Limited ACN095812072”;
the “Special Conditions” included in par (c) the following:
“Prior to the drawdown of any funds by the Mortgagor, the Mortgagee entity may be changed to reflect the party(ies) who ultimately advance the Principal, without the need to seek or obtain any further approval, consent or acknowledgement from the Mortgagor, and with all obligations to the Mortgagee to be unchanged. The Mortgagee is authorised to hand amend the Agreements to correct the Lender entity and if there is to be more than one Lender then the Mortgagee is authorised to insert a further page into this Security with a schedule of Lenders.” (underlining in original in the Deed of Loan and Deed of Guarantee but not the Mortgage)
In addition, under the Deed of Loan and Mortgage, Palace was obliged to pay interest periodically at the rate specified and to repay the principal at the end of the 12 month term of the loan on or before the Expiry Date.
The principal sum of $1.17 million was advanced by three companies and six individuals who were identified in the Kremnizer Mortgage Fund Trust Account Register in respect of the loan to Palace secured over Close Street that was in evidence. The amount advanced by each of those companies and persons was also set out in that Trust Account Register. The three companies and the six individuals are the plaintiffs in the proceedings against Palace.
On 3 September 2024, the principal sum of $1.17 million was advanced to Palace and disbursed in accordance with the directions provided to Baccus by the solicitors acting for Palace in their letter dated 3 September 2024.
As provided under par (c) of the Special Conditions, the Deed of Loan, the Deed of Guarantee and the Mortgage were amended by hand so that the “Mortgagee entity” reflected the companies and individuals who advanced the principal sum to Palace. In particular, the schedule to the Mortgage was hand amended to delete “Baccus Investments Limited ACN095812072” as the “Lender/s” and insert “See Annexure A”. Annexure A was a schedule which listed each of the lenders, being the three companies and six individuals who advanced the principal sum of $1.17 million. In addition, in the schedule to the Mortgage, the “Advance Date” was specified as “3/9/24”, the “Expiry Date” was specified as “3/9/25”.
On 5 September 2024, the Mortgage, executed on 21 August 2024 on behalf of Palace and executed on 2 September 2024 on behalf of each of the plaintiffs, being the three companies and six individuals who were the lenders who advanced the principal sum, was registered with reference AU387526. In the registered mortgage, the plaintiffs were named as the mortgagees.
Interest due in February 2025 of $2,925.00, and in March and April 2025 each of $14,615.25, was not paid by Palace in breach of its obligations under the Mortgage and Deed of Loan.
On 12 May 2025, the plaintiffs commenced the present proceedings by filing a statement of claim seeking judgment for possession of Close Street and judgment in the sum of $1.17 million together with interest and costs.
On 15 June 2025, Palace filed its defence which contained bare denials or non-admissions of relevant paragraphs of the statement of claim. No substantive defence was otherwise pleaded.
On 8 August 2025, the plaintiffs filed the notice of motion seeking:
“1. Order pursuant to UCPR 13.1 that summary judgment be granted to the Plaintiffs for possession of the whole of the land described in folio identifier B/161543 and 4/164485 being the land situated at and known as 98 Close Street, Morpeth in the State of New South Wales (‘Property’).
2. In the alternative to Order 1:
(i) Order that the Defendant’s defence filed on 15 June 2025 be struck out in whole or in part pursuant to UCPR 14.28;
(ii) Leave to the Plaintiffs to enter default judgment for possession of the Property.
3. Leave to the Plaintiffs for the issue of a writ of possession of the Property forthwith.
4. Such further or other orders as the Court considers appropriate.
…”
As noted above, this motion came on for hearing before me on 12 September 2025.
Palace did not dispute that the principal sum had been advanced to it or that it had not paid interest after February 2025 or repaid the principal when it fell due on 3 September 2025. The only substantive basis on which Palace resisted the application for summary judgment for possession was that the lender and mortgagee was Baccus and not the plaintiffs and accordingly the plaintiffs were not entitled to the relief sought.
TJW & Associates Pty Limited (TJW) was at all relevant times and is currently the registered proprietor of Lot 10 in Deposited Plan 669252, known as 315 High Street, Maitland, New South Wales (High Street). In October 2024, in order to refinance existing loans secured over High Street, TJW sought finance through Baccus Investments Limited (Baccus).
On 23 October 2024, Baccus sent a letter to TJW. The letter was headed “Indicative Loan Offer” and included the terms of the proposed loan including that it was an investment loan for $2.535 million for 12 months to be secured by a registered first mortgage over High Street.
On 23 October 2024, Ms Willamson signed the Indicative Loan Offer and a Privacy Act Consent. On the same day, Ms Williamson, in her capacity as director of TJW, signed a completed loan application form in which she provided relevant details concerning TJW and herself. In that application form a loan of $2.535 million for 12 months was sought in order to refinance the existing loan for $2.275 million from Baccus. The information provided in that form also included that the assets of the director or corporations associated with her included eight properties said to be worth $38.7 million and that there were various loans from Baccus, La Trobe, Westpac, Pacific 8, RAMS and Resimac Finesecure totalling $21.3775 million in respect of those eight properties.
On 28 October 2024, Baccus sent to TJW a document headed “Kremnizer Mortgage Fund – Loan Offer” which informed TJW that its application for a loan had been approved and stated that the loan was “now offered to you by Baccus Investments Limited (as Manager for the Kremnizer Mortgage Fund) on the terms as set out [in the letter]”. Those terms included, inter alia:
| “Period of Loan | 12 Months (‘The Term’) | | … | | | Lender: | The Mortgagee is: A Member of the Kremnizer Mortgage Fund | | Mortgagee’s Solicitor: | Baccus Investments Limited – Legal Department. …”. |
On 30 October 2024, Ms Williamson accepted the loan offer by signing the “Kremnizer Mortgage Fund – Loan Offer” document as director of TJW both in its capacity as the borrower and in its capacity as the mortgagor. She also signed that document in her own right as guarantor. On the same day, Ms Williamson:
executed a Deed of Loan in her capacity as sole director of TJW;
executed a Deed of Guarantee in her personal capacity; and
executed a Mortgage in respect of High Street, in her capacity as sole director of TJW.
Clause 1 of the Deed of Loan and of the Deed of Guarantee provided that the respective deeds were to be interpreted as though all of the provisions set out in New South Wales Registered Mortgage Memorandum No. AT591083P were set out in at length in the deed. Clause 2 of each deed provided that the definitions in the Memorandum were altered so that, inter alia, “Schedule’ means the schedule to this Deed” and “’Mortgagee’ means the Lender”.
The Mortgage named Baccus as the mortgagee and provided in cl (b)(i) and (ii) that the mortgage incorporated Registered Mortgage Memorandum No. AT591083P but the parties agreed that the terms of the Deed of Guarantee would take precedence over the terms of the Mortgage to the extent of any inconsistency.
Details of the relevant loan were set out in a schedule to each of the Deed of Loan, the Deed of Guarantee and the Mortgage. The schedules to each of those documents were relevantly identical and in each of those schedules:
the “Advance Date”, “Expiry Date” and “First Instalment Due” were left blank;
the “Lender/s” was specified as “Baccus Investments Limited ACN095812072”;
the “Special Conditions” included in par (c) the following:
“Prior to the drawdown of any funds by the Mortgagor, the Mortgagee entity may be changed to reflect the party(ies) who ultimately advance the Principal, without the need to seek or obtain any further approval, consent or acknowledgement from the Mortgagor, and with all obligations to the Mortgagee to be unchanged. The Mortgagee is authorised to hand amend the Agreements to correct the Lender entity and if there is to be more than one Lender then the Mortgagee is authorised to insert a further page into this Security with a schedule of Lenders.” (underlining in original in the Deed of Loan and Deed of Guarantee but not the Mortgage)
In addition, under the Deed of Loan and Mortgage, TJW was obliged to pay interest periodically at the rate specified and to repay the principal at the end of the 12 month term of the loan on or before the Expiry Date.
The principal sum of $2.535 million was advanced by three companies and 17 individuals who were identified in the Kremnizer Mortgage Fund Trust Account Register in respect of the loan to TJW secured over High Street that was in evidence. The amount advanced by each of those companies and persons was also set out in that Trust Account Register. The three companies and the 17 individuals are the plaintiffs in the proceedings against TJW.
On 12 November 2024, the principal sum of $2.535 million was advanced to TJW and disbursed in accordance with the directions provided to Baccus by the solicitors acting for TJW in their letter dated 11 November 2024.
As provided under par (c) of the Special Conditions, the Deed of Loan and the Mortgage, were amended by hand so that the “Mortgagee entity” reflected the companies and individuals who advanced the principal sum to TJW. In particular, the schedule to the Mortgage was hand amended to delete “Baccus Investments Limited ACN095812072” as the “Lender/s” and insert “See Annexure A”. Annexure A was a schedule which listed each of the lenders, being the three companies and 17 individuals who advanced the principal sum of $2.535 million. In addition, in the schedule to the Mortgage, the “Advance Date” was specified as “12 November 2024”, the “Expiry Date” was specified as “12 November 2025”.
On 12 November 2024, the Mortgage, executed on 30 October 2024 on behalf of TJW and executed on 11 November 2024 on behalf of each of the plaintiffs, being the three companies and 17 individuals who were the lenders who advanced the principal sum, was registered with reference AU578364. In the registered mortgage, the plaintiffs were named as the mortgagees.
Interest due in March 2025 of $31,687.50, was not paid by TJW in breach of its obligations under the Mortgage and Deed of Loan.
On 17 April 2025, the plaintiffs commenced the present proceedings by filing a statement of claim seeking judgment for possession of High Street and judgment in the sum of $2.535 million together with interest and costs.
On 20 May 2025, TJW filed its defence which contained bare denials or non-admissions of relevant paragraphs of the statement of claim. No substantive defence was otherwise pleaded.
On 4 July 2025, TJW and Ms Willamson filed a statement of cross claim, naming TJW as the first cross claimant and Ms Williamson as the second cross claimant (even though she is not otherwise a party to the proceedings), and Baccus was named as the first cross defendant. In that cross claim, it was pleaded that:
Baccus, not the plaintiffs, had advanced the sum of $2.535 million secured over High Street by registered mortgage AU578364;
“1. Summary judgment be granted pursuant to UCPR 13.1 for possession of the whole of the land described in folio identifier 10/669252 being the land situated at and known as 315 High Street, Maitland in the State of New South Wales.
alternatively
2. That the Defence filed on behalf of the Defendant be struck out in whole or in part pursuant to UCPR 14.28.
3. That default judgment be entered for the Plaintiff for possession of the whole of the land described in folio identifier 10/669252 being the land situated at and known as 315 High Street, Maitland in the State of New South Wales.
4. Such further or other orders as the Court considers appropriate.
5. Costs in accordance with registered mortgage AU578364.”
In addition, in that notice of motion, the cross defendant sought to have the cross claim summarily dismissed or struck out in whole or in part.
As noted above, this motion came on for hearing before me on 12 September 2025.
TJW did not dispute that the principal sum had been advanced to it or that it had not paid interest after March 2025 and was in default. The only substantive basis on which TWJ resisted the application for summary judgment for possession was that the lender and mortgagee was Baccus and not the plaintiffs and accordingly the plaintiffs were not entitled to the relief sought.
“(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief—
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
In each case, there was evidence of the facts on which the relevant part of the plaintiffs’ claims was based. That evidence established what has been set out above in relation to the loan documentation, advances and defaults about which there was no dispute. Furthermore, there was affidavit evidence from the solicitor with carriage of each matter, Mr Kremnizer, who was relevantly a responsible person for the purpose of the rule, that he believed that the defendant in each case had no defence to the claim for possession of the land in question. Accordingly, the requirements of r 13.1(1)(a) and (b) have been met and the Court’s power to order summary judgment is enlivened.
It is well established that the power to terminate proceedings summarily “is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”: General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 at 129 (Barwick CJ); [1964] HCA 69. Putting the principle in another way, the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25, said at 99:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".
“If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense.”
The legal principles in relation to the identification of parties to a contract were helpfully summarised by Gleeson J in Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226 (Loureiro) at [34] – [38]. These principles include:
The answer to the question “who are the parties to the contract?” involves the construction of the contract: Loureiro at [35] and the cases there cited;
Identification of the parties to the contract must be made in accordance with the objective theory of contract: Loureiro at [35] and the cases there cited; and
The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract: Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 at [28] (Allsop P and Handley AJA).
In determining the proper construction of the two mortgages and the other loan documentation in the present cases, Ms Willamson’s or Dr Chahl’s subjective intentions or understanding as to who the parties to the contracts were are not relevant. The construction of the mortgages is to be determined by what reasonable persons in the position of parties would have understood them to mean taking into account, not only of the text of the documents, but also the surrounding circumstances known to them and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
In my view, the wording of par (c) in the “Special Conditions” found in each Mortgage as well as in each Deed of Loan and Guarantee unequivocally indicated that “the party(ies) who ultimately advance the Principal” would, or at least might, not be the party nominated in the form of the documentation signed as the “Lender/s”, namely Baccus. In addition, the further words in that paragraph which stated that the relevant documentation could be amended by hand “to correct the Lender entity and if there is to be more than one Lender then the Mortgagee is authorised to insert a further page into this Security with a schedule of Lenders” also indicated that the parties to the Mortgages and the other loan documentation were intended to be the persons who actually provided the funds to be advanced. A reasonable person in the position of Ms Willamson and Dr Chahl, acting on behalf of the borrowers Palace and TJW, would have understood that paragraph to mean that the persons entitled to the benefit of, and entitled to enforce, the Mortgage as mortgagees were to be the parties who ultimately advanced the principal sum repayable and secured under each Mortgage.
This construction is consistent with the purpose and object of the documentation. Each Mortgage and the other loan documentation had the purpose of ensuring that Palace and TJW received funds in accordance with the terms of that documentation and that the persons who advanced the funds to Palace and TJW would obtain not only the right to repayment of those funds with interest, but also that the repayment of the principal and the payment of interest would be secured by way of the registered Mortgages over the relevant land. This would be achieved if the actual lenders, rather than Baccus, were the parties to the Mortgages and the other loan documentation. No other approach would make commercial sense.
Since there was no dispute that the funds under each loan had been advanced and Palace and TJW were both in default under their respective Mortgages and other loan documentation, by virtue of s 60 of the Real Property Act 1900 (NSW) the relevant mortgagees were entitled to bring proceedings in the Supreme Court for possession of the land the subject of the relevant Mortgage.
Furthermore, since the plaintiffs in each matter were the relevant lenders and mortgagees, there was no triable issue as to the liability of each defendant to judgment for possession in these proceedings.
Except for the cross claim in the proceedings relating to TJW, the defendants did not raise any considerations why judgment for possession should not be ordered in each case and there did not appear to me to be any considerations which would lead to the conclusion that judgment for possession should not be entered in all the circumstances.
The cross claim brought by TJW and Ms Williamson against Baccus in the proceedings against TJW did not undermine, in any way, the plaintiffs’ claim for possession against TJW. Indeed, the cross claim proceeded on the basis that TJW was in default in respect of the loan of $2.535 million and sought to attribute the inability to meet its obligations to Baccus’s unconscionable conduct in relation to an entirely separate proposed loan to be secured over different property. Summary judgment in the plaintiffs’ favour as sought in the relevant notice of motion would not prevent TJW and Ms Williamson from pursuing such a claim against Baccus but the cross claim establishes no basis for refusing summary judgment for possession to the plaintiffs who advanced the funds to TJW in respect of the loan of $2.535 million secured by way of the registered mortgage over High Street.
The plaintiff’s motion filed on 8 August 2025 also sought summary dismissal of the cross claim or, alternatively, that the cross claim be struck out. The cross claim alleged unconscionable conduct by Baccus said to have caused TJW loss and damage. Resolution of that claim will require significant issues of fact and law to be addressed. None of those issues has been the subject of evidence or submissions in the hearings before me in the Duty List. On the material before me, I could not be satisfied that there is no real question to be tried in respect of the cross claim. Accordingly, it is not appropriate to dismiss the cross claim summarily.
No order for costs was sought in the notice motion filed in the proceedings against Palace. In the proceedings against TJW, the notice of motion sought costs “in accordance with registered mortgage AU578364”. I note here that the plaintiffs in the proceedings against TJW have not been successful in their claim to have the cross claim summarily dismissed or struck out.
Both Mortgages incorporated by reference the provisions set out in Registered Mortgage Memorandum No. AT591083P but a copy of that memorandum was not in evidence. It is not unusual for mortgages to include terms dealing with a mortgagee’s right to recover costs of enforcement of the mortgage including legal costs.
In all the circumstances, in my view, the preferable course is not to make any costs order in respect of either notice of motion, but to leave recovery of costs to be dealt with in accordance with the various plaintiffs’ rights, if any, to recover the costs of enforcement of their respective mortgage in accordance with the terms of that mortgage.
Accordingly, the orders of the Court are as follows.
In proceedings 2025/00181721, Oclee Pty Ltd v Palace Property Pty Ltd:
Judgment for the plaintiffs for possession of whole of the land described in folio identifier B/161543 and 4/164485 being the land situated at and known as 98 Close Street, Morpeth in the State of New South Wales (the Property).
There be leave for the issue of a writ of possession of the Property forthwith.
Otherwise the notice of motion filed on 8 August 2025 is dismissed.
List the matter before the Registrar on 19 November 2025.
In proceedings 2025/00150437, Zhao v TJW & Associates Pty Ltd:
Judgment for the plaintiffs for possession of whole of the land described in folio identifier 10/669252 being the land situated at and known as 315 High Street, Maitland in the State of New South Wales (the Property).
There be leave for the issue of a writ of possession of the Property forthwith.
Otherwise the notice of motion filed on 8 August 2025 is dismissed.
List the matter before the Registrar on 19 November 2025.
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Formatting amended.
(2009) 77 NSWLR 299
(1949) 78 CLR 62
(1983) 154 CLR 87
(1964) 112 CLR 125
(2004) 218 CLR 451
TJW and Ms Williamson had received a notice of default from Baccus on 24 April 2025;
TJW was unable to remedy the default due to financial distress caused by the actions of Baccus withdrawing an offer of a loan to refinance a loan from Pacific 8 Pty Ltd (Pacific 8) to Palace for 12 months for $6.8 million in relation to, and secured by way of a registered mortgage of, land at Mayfield;
As a result, Palace defaulted on the loan to Pacific 8 which led to the appointment of receivers and managers to Palace and Pacific 8 took possession of the land at Mayfield as a mortgagee in possession thus depriving Ms Williamson of funds from that source with which to remedy the default by TWJ under the loan and mortgage in relation to High Street; and
Baccus’s actions in withdrawing the loan offer to permit refinancing of Palace’s loan from Pacific 8 were unconscionable.
On 7 August 2025, Baccus, the cross defendant, filed its defence to cross claim in which it was pleaded, inter alia, that Baccus did not advance the sum of $2.535 million and was not the mortgagee under the Mortgage. In addition, the defence pleaded to the allegation relating to the loan by Pacific 8 to Palace and denied any unconscionable conduct by Baccus.
On 8 August 2025, the plaintiffs filed the notice of motion seeking:
Furthermore, the surrounding circumstances also support this construction of the Mortgages and the other loan documentation. Palace, TJW, Ms Willamson and Dr Chahl, were investors with a significant property portfolio and substantial existing loans as disclosed in the Loan Application Forms completed by them or on their behalf. They were informed in each “Kremnizer Mortgage Fund – Loan Offer” that their applications for a loan had been approved and that the loan was “now offered to you by Baccus Investments Limited (as Manager for the Kremnizer Mortgage Fund)”, in this way, Baccus’s role was expressly identified as the manager of the named fund rather than the actual lender. In each of those “Loan Offer” documents, the “Lender” was identified as “The Mortgagee” who was described as “A Member of the Kremnizer Mortgage Fund”. The “Mortgagee’s Solicitor” was identified as “Baccus Investments Limited – Legal Department”. These circumstances confirm that objectively the Mortgages and the other loan documentation should be construed as providing that the lenders and mortgagees in each case were the persons who actually provided the funds which were advanced to Palace and TJW and not Baccus.
For these reasons, the plaintiffs in the proceedings relating to the loan of $1.17 million to Palace should be found to be parties to, and the mortgagees under, registered mortgage AU387526 and parties to the other relevant loan documentation, being the persons who provided the funds advanced to Palace. Similarly, the plaintiffs in the proceedings relating to the loan of $2.535 million to TJW were parties to, and the mortgagees under, registered mortgage AU578364 and parties to the other relevant loan documentation, being the persons who provided the funds advanced to TJW.