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1. KS is a pensioner whose sole source of income is derived from Centrelink benefits. She lives in a 6-bedroom residential property in an established street in the inner north suburb of Ainslie (the Property). She claims to have a number of significant ongoing disabilities, both physical and mental, which were made known to the Court during the hearing. She is also the sole director and shareholder of Nusage Pty Ltd (ACN 648 472 691) (Nusage), the defendant in this possession proceeding.

2. On 19 July 2021, KS, apparently with the assistance of an unidentified third party, caused Nusage, in its own capacity and as trustee for the Nusage Trust to enter into a Loan, Security and Guarantee Deed agreement (Loan Agreement) with the plaintiff in this proceeding, Prime Capital Securities Pty Ltd (Prime Capital). The loan was for the sum of $850,000.00 and was secured by the Property. KS told the Court that Nusage borrowed more than was required and the mortgage repayments were initially funded from the borrowings. KS is the personal guarantor under the Loan Agreement.

3. The defendant failed to make a number of repayments and accordingly, defaulted on the loan. The plaintiff sought possession of the property against Nusage. On 30 January 2024, orders were made granting that relief and requiring the defendant to vacate the property by 16 March 2024. These are the reasons for the orders made on the substantive application.

The proceeding

4. The application was brought pursuant to s 96 of the Land Titles Act 1925 (ACT) (Land Titles Act), seeking orders for possession and for the defendant to vacate the premises (Application). The solicitor for the plaintiff emphasised that the Application was confined to what was necessary to take possession of the Property and sell it. The Application was not for a judgment debt against either the defendant or KS as guarantor.

5. This is relevant because KS sought to raise a number of matters at the hearing, telling the Court she was misled as to: (a) the effect of the loan, (b) the terms of the loan (or her understanding of them), (c) how the loan came about, and (d) the statutory declaration she signed before a solicitor when she executed the Loan Agreement.

6. However, there was no cross-claim dealing with any of these matters, either in equity or based on any statutory provision such as unconscionable conduct in connection with financial services under s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). Similarly, because the matter was commenced by way of Originating Application, there was no defence arguing these matters.

7. These reasons for judgment are expressly confined to whether the plaintiff had made out its case for possession based on satisfaction of the requirements under s 96 of the Land Titles Act (and the statutory pre-conditions set out in ss 93 and 94 of that statute).

The evidence

8. The Application was supported by a number of affidavits from the following: (a) Ms Celie Hazel Clucas, agent solicitor for the plaintiff with carriage of the file, affirmed 17 July 2023 and 4 August 2023. (b) Mr Thomas Barrington-Smith, solicitor on the record, affirmed 18 December 2023 and 30 January 2024.

9. Ms Clucas’s affidavit material contained relevantly: (a) the ASIC Search for the defendant; (b) the Title Search confirming the defendant as the registered lessee; (c) the executed loan agreement, including the terms of the mortgage; (d) the registered mortgage; (e) The first Notice of Default dated 21 February 2023; (f) A Notice of Termination and Notice of Default and Demand dated 31 March 2023 for the default debt of $958,593.20.

10. Mr Barrington-Smith’s first affidavit contained the bank statement demonstrating the entire history of the loan, the default on the loan, and the current amount of the debt. As at 1 December 2023, shortly before the date of the hearing, the outstanding amount of the loan was $1,169,331.97. These include legal fees charged, including a recoveries fee of $18,700.00 and (unassessed) legal fees of $43,882.35.

11. Mr Barrington-Smith’s second affidavit contained a letter from the ACT Revenue Office dated 22 January 2024. That letter was sent pursuant to s 56HA(3) of the Taxation Administration Act 1999 (ACT) (TA Act), which permits the ACT Revenue Office to recover unpaid taxes on the Property from the mortgagee (including conveyance duties, rates and land taxes). As at 22 January 2024, the unpaid monies owing to the ACT Revenue Office totalled $51,889.44.

12. Affidavits of service on both the defendant company at its registered business address and of personal service on KS as Director and guarantor of the defendant company were also before the Court from the following: (a) Ms Kaylah Noonan, affirmed 25 July 2023; (b) Ms Naomi Woodward, affirmed 26 July 2023; and (c) Mr Craig Clive Brooks, sworn 3 March 2023, 12 April 2023 and 21 April 2023 respectively.

The power of the Court to grant the relief sought

13. The plaintiff relies on s 31 of the Supreme Court Act 1933 (ACT) which requires the Court to give effect to all claims for relief arising under the common law or the statute law of the Territory, subject to any equitable rules applicable under that statute. The particular statute giving rise to the claim for relief is s 96 of the Land Titles Act.

Legislative framework

14. The statutory framework governing the present dispute is set out in ss 93 to 96 of the Land Titles Act. Relevant to the circumstances here, it provides various remedies for a mortgagee in the event of default.

15. The starting point under s 93(1) is that any mortgage “under this Act” shall have effect as a security but shall not operate as a transfer of the land thereby charged.

16. Relevant to the circumstances of Nusage here, if default is made in the payment of the principal sum or interest, or any part thereof, secured by the mortgage and the default is continued for the space of 1 month, the mortgagee may give a formal default notice to the mortgagor, warning that the mortgagee may sell the land: s 93(2). That section provides for two methods of giving notice to the mortgagor. The mortgagee may either (emphasis added): (a) give to the mortgagor … notice in writing to pay the money then due or owing on the memorandum of mortgage …, and that sale will be effected unless the default be remedied; or (b) leave the notice on the mortgaged … land or at the usual or last-known place of abode in the ACT of the mortgagor … or with … her agent in the ACT.

17. Upon proper notice, the mortgagee may: (a) Sell the land that is the subject of mortgage that has been registered under the Land Titles Act (s 94) which the statute facilitates by machinery provisions in s 95 vesting the property in the mortgagee;

(b) Enter into possession of the land by taking the rent and profits thereof: s 96(1)(a); or

(c) Bring an action to recover physical possession of the property (whether or not the mortgagee then sells the land):s 96(1)(b).

18. By this proceeding, the plaintiff is pursuing the last of these options.

19. Separately to the mortgagee selling the land, the mortgagor may apply to the Court for an order of sale: s 95A. On such an application, the Court may order the sale of the land on any terms as the Court considers just. The section may be utilised, for example, where a mortgagee enters into possession but does not immediately sell the land, with the interest repayments continuing at the mortgagor’s expense until the land is sold and causing any remaining equity in the property that would otherwise be paid to the mortgagor to instead be absorbed by the mortgagee. Nusage did not seek that order here.

20. With that overview, the focus of the Application is upon s 96 of the Land Titles Act, which is in the following material terms (emphasis added): 96 Default, entry and possession—action for recovery (1) The mortgagee … upon default in payment of the principal sum or … or of any interest … secured by any mortgage … may— (a) enter into possession of the mortgaged … land by receiving the rents and profits therefor; or (b) bring an action to recover the land, either before or after commencing to take the rents and profits, and either before or after any sale of the land effected under the power of sale given or implied in his or her memorandum of mortgage …; in the same manner in which he or she might have made the entry or brought the action if the principal sum … were secured to him or her by a conveyance of the legal estate in the land so mortgaged … .

21. From the words emphasised above, the plaintiff had to demonstrate that there: (a) was a mortgage as defined under the Land Titles Act, naming the plaintiff as the mortgagee of the property; and (b) had been a default in the payment of the principal sum, or any part thereof, or any interest. Notice to Nusage and KS of default on the loan and of this proceeding

22. During the hearing, KS contested service of both the original notice of default and the Originating Application that commenced this proceeding. She claimed that neither she nor Nusage had received either document.

23. The ASIC search of Nusage recorded an address at an accounting firm in Phillip as the registered business address. KS, as the sole director and shareholder of Nusage (and the agent through whom Nusage acts), resided at the Property.

24. Detailed attention was given to the affidavits of service referred to above, matching the addresses where the documents were served to the registered business and personal addresses of Nusage and its director, KS. The affidavits of service, prepared by independent process servers, were not challenged. They established that the service of the default notice complied with the requirements of s 93 of the Land Titles Act.

25. In respect of this proceeding, r 61 of the Court Procedure Rules 2006 (ACT) (Rules) requires that an Originating Application be personally served on the defendant. Rule 6431 sets out what constitutes effective service on a corporation. Among other things, it permits service in a way provided for by the Corporations Act 2001 (Cth) (or another applicable law). The relevant section of that statute is s 109X, which in turn provides for service by leaving the document at, or posting it to, the company’s registered office. Another alternative listed is by delivering a copy of the document personally to a director of the company who resides in Australia.

26. Again, the affidavits of service established that service was carried out by both those alternatives. The service requirements of the Rules were thus met.

The request for an adjournment

27. During the hearing on 30 January 2024, Nusage requested an adjournment of 8 to10 weeks on compassionate grounds. In support of its application, KS provided the following reasons: (a) She was “in the process” of causing Nusage to sell the Property; (b) That process had been delayed since September 2023 because of her various mental and physical illnesses; (c) She was in the process of contacting other lenders to refinance the existing debt with another lender; (d) She was seeking a support person to assist her in the process of these proceedings.

28. After investigation of each of those matters with KS on behalf of Nusage, I refused the adjournment and indicated at the time that the reasons would be incorporated as part of the reasons for the substantive judgment.

29. The history of the proceedings is important in understanding why one further opportunity was not given.

30. The proceeding was commenced on 14 July 2023 and the matter was listed for directions on 7 August 2023. At that time, the proceeding was adjourned, with the Registrar noting that KS had comprehension difficulties and had attempted to obtain legal advice previously.

31. The matter was next before the Court on 11 September 2023. Again, the Registrar recorded that KS had encountered difficulty in obtaining legal advice and stated that she had attempted to do so on a number of occasions. The matter was adjourned again to give the defendant further time to get legal assistance.

32. On 25 September 2023, the matter was again before the Registrar and was referred to me for directions. During the hearing, leave was granted to KS for a representative of ACT Disability, Aged and Carer Advocacy Service (ADACAS) to assist KS and Nusage as a McKenzie friend for the defendant. Leave was also granted to KS to represent the company pursuant to r 30(4)(b) of the Rules, for reasons that were given at the time. In short, the company had never traded, and had no means of obtaining legal representation. KS was the sole director and shareholder. The proceeding, insofar as it was limited to the Application, appeared to be relatively straightforward.

33. The plaintiff indicated that it wished to proceed to a final hearing of the Application. However, as the matter was only formally before the Court for directions, the matter was instead set down for hearing on 30 January 2024.

34. During the hearing on 25 September 2023, KS expressed the desire to sell the property in order to pay off the debt owed to the plaintiff. Discussion was had as to how long it might take to market and sell the Property. The hearing date was made to give KS and Nusage the opportunity to carry out the sale of the Property without the intervention of the mortgagee.

35. The matter then came before the Court on two further occasions, being 2 November and 11 December 2023. On each occasion, KS informed the Court of her difficulties in obtaining legal representation and/or advice, and in overcoming her disabilities to permit her to progress selling the Property. On those occasions, the Court granted extensions of time to file evidence, but explained to KS (who continued to appear for the defendant) that the hearing would proceed on 30 January 2024. Further, it was emphasised to KS that given the history of the matter (being the previous adjournments), Nusage’s ongoing inability to obtain legal advice or prepare evidence, or inability to bring about the sale of the Property without the intervention of the mortgagee would not be sufficient reasons to further delay the hearing for possession.

36. On 30 January 2024, when Nusage again sought an adjournment to obtain legal representation and allow an opportunity for the Property to be sold, the plaintiff opposed the application. There was no evidence to substantiate any claim that the Property was in the process of being sold, or that Nusage had even formally engaged an agent to sell the Property. The highest KS was able to put the defendant’s case was that she was in discussion with property agents. It appeared that there was no money available to market the Property. It further appeared that in fact, no real steps had been taken since 25 September 2023 to progress the sale.

37. To the extent that KS’s ill health was the reason why no substantive progress had been made towards selling the Property, there was no evidence to suggest that KS’s ongoing health issues would improve, so as to put Nusage in a different position than it was in previously. I had no confidence that KS’s health would be any different, such as to allow her to attend to readying the Property for sale.

38. To the extent that KS reiterated the steps that she had taken to get legal advice, it was not clear whether these attempts were separate to the previously unsuccessful efforts she had made to obtain advice. What was clear was that no legal practitioner had indicated any agreement to advise or represent Nusage. I formed the view that in the event of a further adjournment, it remained very unlikely that any legal representation for Nusage would materialise.

39. Adding to all this, if I granted the adjournment requested, that would have delayed the matter being heard for an additional 8 to 10 weeks. The interest repayments were increasing every month because the principal balance was increasing every month. In October 2023, the interest repayments alone (without the loan management, default administration and legal fees being charged) were $16,461.73 per month. By December 2023, interest was accruing at a rate of $17,259.04 per month. A further loan management fee of $850.00 per month, and a default administration fee of $500.00 per month, was also being charged. Whether those amounts are properly recoverable is not the subject of these proceedings, but the writing was on the wall — every month that the loan remained unpaid was an extra month that Nusage’s financial position went backwards. An 8-week adjournment alone would add more than $35,000.00 to the unpaid loan debt.

40. For these reasons, I was not satisfied that there was any utility in granting the adjournment, nor that it was in the interests of either Nusage or Prime Capital to adjourn the proceedings. These are the reasons why I refused the application.

Issue 1: Did the plaintiff hold a registered mortgage over the Property?

41. The ACT Title Search in evidence for the Property confirmed that there was only one mortgage registered in respect of the Property, registered by the defendant on 6 August 2021.

42. The Property is also subject to an overriding (in terms of priority) statutory charge in favour of the Commissioner for Revenue under s 56H(1) of the TA Act. That interest was registered on 4 March 2022.

43. Under the registered mortgage which was also in evidence, the plaintiff was named as the registered mortgagee and Nusage as the registered mortgagor. The documents therefore proved that the plaintiff was a mortgagee in respect of which the Land Titles Act applied.

Issue 2: Was the loan in default?

44. The Loan Agreement was before the Court. It contained the following terms: (a) Nusage was to pay Prime Capital the aggregate of all advances outstanding and the balance if any of the debt on the Termination Date, which was 3 years from the date of the initial advance, absent earlier termination by Prime Capital under the Loan Agreement: clause 4.1 of Part 4 of the Loan Agreement. (b) Nusage was to pay interest to Prime Capital monthly at 4.95% per annum (the lower rate), but if the loan was in default, Nusage was to pay 1.5% per month (the higher rate): Items 4 and 5 of Part 1 and clauses 5.1 and 17.1 of Part 4 of the Loan Agreement. (c) A monthly Management Fee was payable at the rate of 0.1% of the Limit: Item 3 of Part 1 and Clause 6.3 of Part 4 of the Loan Agreement. (d) A Default Administration Fee of $500 per month was payable: Item 7 of Part 1 and clause 6.4 of Part 4 of the Loan Agreement. (e) A Capital Reserve Fee of 3% of the Limit was also payable: Item 3 of Part 1 and clauses 12.10 and 17.1 of Part 4 of the Loan Agreement. (f) The plaintiff’s legal costs and expenses were payable on a full indemnity basis: clause 12.2(b) of Part 4 of the Loan Agreement.

45. The Loan Agreement defined a number of different events as a “Default Event”. Relevantly here, one of those defaults was a failure to pay monies owing by the due date, pursuant to clauses 8(a) and 8(b) of Part 4 of the Loan Agreement.

46. In the event of default, the Loan Agreement provided (among other things) that: (a) Prime Capital may cancel the facility and demand and require immediate payment of the Secured Money (a defined term) in full: clause 9.2 of Part 4 of the Loan Agreement; and (b) The plaintiff would be entitled to take possession of the Property: clause 10.2(c) of the terms of the Mortgage provided at Part 6 of the Loan Agreement.

47. Nusage, at the hearing, referred to the plaintiff as a “loan shark”, which I took as a reference to the terms of interest and high monthly fees under the Loan Agreement set out above. However, as I made clear at the hearing, because the claim was not for a judgment debt, it was unnecessary to give any consideration to whether all of the above terms were valid and enforceable, and the process by which the parties entered into the Loan Agreement was expressly not considered or determined in any way. Those matters are properly left to be agitated between the parties if and when the need arises. Taking just the entitlement to be paid monthly interest at the lower rate, there was clearly a default on the Loan Agreement established in the failure to repay the monies owing.

48. That is seen from the bank statement for the entire history of the loan facility, which was in evidence. It established that from 1 August 2021 to 30 November 2022, the defendant made mortgage repayments of between $4,356.25 a month and $6,369.74 per month. Thereafter, the bank statements tell a sorry story. No payments were made on the loan at all from 1 December 2022 to date. That is unsurprising given that the defendant, has no Australian Business Number or ABN, suggesting that it has never traded, and the individual guaranteeing the loan was on Centrelink benefits. (The Nusage Trust appears to have an ABN but it was not an entity responsible in any way for the loan repayments.)

49. The default being clear, the plaintiff’s entitlement to an order for possession under s 96 of the Land Titles Act was also established.

Ancillary matters supporting the order for possession

50. As the resident in the Property, KS has accumulated significant and bulky household items as a result of overseas relatives previously living with her for some time. She has not yet attempted to find suitable accommodation in which to live. She informed the Court that she had no financial resources to assist her to vacate the Property. The timing of vacation is a matter within the Court’s discretion having regard to the particular circumstances of the case. Of course, every day that the defendant remains in possession of the Property is another day passed at the defendant’s increasing expense. It is firmly in the defendant’s interests, and that of its director as personal guarantor, that the ever-increasing loan balance be capped, and under the Loan Agreement, that will only occur when the entire balance is repaid (presumably from the proceeds of the sale of the property). 6 weeks was allowed to give time for suitable arrangements to be made.

51. Nusage accepted that if orders for possession were made, then it was advantageous to all parties for access to be provided at a time convenient to KS as the resident, to enable a property agent to commence the steps necessary to market the sale of the Property. Provision was made for that to occur in the orders.

52. The parties also sought liberty to apply to the Court in the event that there are difficulties with vacating the property. That liberty may also be necessary in the event that, having taken possession, the plaintiff does not take timely steps to sell the Property.

53. However, such an order was unnecessary at this stage because, as the legal representative for the plaintiff submitted, the plaintiff has a pressing motivation to sell. As the arrears have been outstanding for at least a year, ACT Revenue is now pursuing the plaintiff directly, by way of compulsory notice issued to the mortgagee pursuant to s 56HA of the TA Act, for the outstanding rates owing on the Property (an amount which now exceeds $50,000.00).

The lack of a legal assistance scheme available for court referrals in the ACT

54. There are troubling aspects about this case. KS confirmed that Nusage and the Nusage Trust were created solely as the vehicles for the Loan Agreement and purchase of the residential home in which she currently lives. She also confirmed that Nusage had never traded. Notwithstanding this fact, the Loan Agreement which the defendant executed, under the signature of KS as the sole director and shareholder of the defendant, and which KS also personally guaranteed, described the purpose of the loan as “commercial”. KS reported that there was a third party involved in brokering the loan transaction but was reluctant to say who that was. There was nothing before the Court to say that Nusage or KS had received any independent financial advice.

55. In this case, Prime Capital relied on what appears to be a standard form statutory declaration signed by KS as the guarantor. The statutory declaration included the words: I have had the opportunity to obtain, and have obtained, legal advice from an independent Australian Legal Practitioner before whom this declaration was sworn, prior to executing this Loan, Security and Guarantee Deed and Security as to the nature and effect of the documents and my obligations under them. I have considered and understand the nature and effect of the documents and transactions contemplated herein and that the provisions of this Loan, Security and Guarantee Deed and Security will have a financial impact upon me if enforced by the Lender…

56. In Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271 (Stubbings), Mr Stubbings was unemployed and had no regular income. He acted as the guarantor for a company wholly owned and controlled by him, and that company entered into a loan agreement with the respondents to purchase a property. The loan was obtained by an intermediary and an agent (who was also Mr Stubbings’ solicitor), and was secured by property owned by Mr Stubbings. Mr Stubbings signed boilerplate independent financial and legal advice certificates. The company defaulted. Mr Stubbings asserted his indebtedness to the lender was procured by way of unconscionable conduct.

57. The High Court (Kiefel CJ, Keane and Gleeson JJ) found (at [52], on an equity basis) that there had been an unconscientious exploitation of Mr Stubbings’ special disadvantage and that it was unconscionable for the respondents to insist upon their rights under the mortgages. Writing separately but in agreement with the result, Gordon J found (at [54]-[55]) that the respondent lenders’ system of conduct was contrary to s 12CB of the ASIC Act which prohibits persons from engaging in conduct that is in all the circumstances, unconscionable, in connection with the supply of financial services in trade or commerce.

58. In finding that there was unconscionable conduct, Gordon J in Stubbings was critical of the lender’s (including those acting through an agent and intermediary) failure to make their own enquiries, and to conduct due diligence checks regarding the financial circumstances of a borrower, particularly where a borrower’s security comprises the assets of their guarantor: Stubbings at [85]-[91].

59. The case repays careful reading for the obligations of lenders and what it means to exploit vulnerability — especially if that vulnerability is masked by a shell company with limited assets, including real property in which the director and guarantor resides.

60. The mentioning of this case is not to be taken as a suggestion that the plaintiff here has necessarily done anything wrong. The plaintiff was not defending any cross-claim or any articulated claim of unenforceability or unconscionability in respect of the Loan Agreement, or any part of it. It is entirely unknown what documents the defendant provided to the plaintiff in order to secure the Loan Agreement in the first place, nor what enquiries the lender made as to the borrower’s capacity (a shell company that was not trading and with no assets apart from the secured Property) to repay what was on any view a sizeable loan for a residential property in which the guarantor proposed to live. The assets of the Nusage Trust were similarly not disclosed.

61. As the circumstances of the interactions between the defendant and the plaintiff (and the involvement of any third party) were not before the Court, I made it clear at the hearing that the plaintiff was not being called upon to answer the defendant’s repeated claims of unconscionability in respect of the Loan Agreement. It would be entirely unfair to cast any aspersions in the plaintiff’s direction in these subsequent reasons.

62. However, a party before the Court was seeking to raise a matter which, in accordance with Stubbings, was certainly arguable albeit whether it ultimately had substance depended on knowledge of the full circumstances. Although questions of unconscionability may have been the basis to set aside the loan in its entirety, given the urgency to sell the Property arising from the ACT Revenue’s compulsory notice, the hearing proceeded on the basis that the question of any unconscionability was: (a) not being determined, but (b) not foreclosed to the defendant to raise, if and when the parties come to deal with the amount payable under the loan.

63. The basis for the sense of disquiet is because, despite what appeared to be genuine endeavours to obtain legal assistance, the defendant was unable to succeed in finding anyone to articulate the point or even to put sufficient material before the Court by way of evidence to fairly support the allegation of unconscionability being made. Previous lunchtime schemes operated by the ACT Law Society no longer exist. This was a case where the opportunity for the defendant to take brief legal advice about the point of principle raised, namely unconscionability (either under statute or in equity), may have been of benefit to the Court in dealing with allegations that were put before the Court, but were not pleaded or otherwise articulated.

64. The Federal Court Rules 2011 (Cth) (FCR) has a scheme for pro bono referrals made by a judicial officer. Part 4, Division 4.2 includes the following: Rule 4.12 Referral for legal assistance (1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9. (2) When making a referral under subrule (1), the Court may take the following matters into account: (a) the means of the party; (b) the capacity of the party to otherwise obtain legal assistance; (c) the nature and complexity of the proceeding; (d) any other matters the Court considers appropriate. (3) The referral certificate may state the kind of legal assistance for which the party has been referred. (4) A Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

65. Pursuant to r 4.13 of the FCR, a party is not entitled to apply to the Court for a referral under r 4.12. It is a scheme for judicial officers to refer matters where the judicial officer considers it to be appropriate, not for referral of any matter where a party is without representation. There are various rules that facilitate the provision of the advice, including for limiting or ceasing to advise and for costs in circumstances where a practitioner takes on a case which is then successful.

66. Informal legal assistance schemes are also in operation in other jurisdictions, including lists (held by the relevant bar association or law society) of practitioners who are willing to accept court referrals for pro bono advice on a limited question. In Stubbings, among the orders the High Court made was an order pursuant to r 63.34.2 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for costs in the appellate court to be payable to the legal representatives who acted on a pro bono basis as if there was an obligation to pay for the legal assistance in the ordinary way. There is clear merit in procedural rules that promote access to justice.

67. Had such a scheme existed in the Territory, even on an informal basis, this is a case where it may well have been appropriate for a court referral to have been made.

Orders

68. For the foregoing reasons, the orders made on 30 January 2024 were as follows: (1) Pursuant to s 96 of Land Titles Act 1925 (ACT) and registered mortgage [redacted], the plaintiff is granted exclusive possession of the property bearing Land Titles Reference [redacted] in the Australian Capital Territory. (2) On Friday 23 February 2024 at 3:00pm or such time as is otherwise agreed between the parties, the defendant is to provide access to the property to the plaintiff or their agent, for the purpose of assessment and appraisal for the sale of the property. (3) Parties have liberty to apply on 7 days’ notice. (4) The defendant is to provide vacant possession of the property by 16 March 2024 at 5:00pm. (5) Costs are reserved. I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: