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1. I made the following orders on 3 July 2026: (1) Leave is granted to file in Court the amended application in proceeding dated 1 July 2026. (2) Pursuant to r 38 of the Court Procedures Rules 2006 (ACT), these proceedings are to continue as if started by originating application. (3) Pursuant to s 96 of the Land Titles Act 1925 (ACT) and registered mortgage dated 14 July 2022, bearing registration number 3173178, the plaintiff is granted exclusive possession of the property described as Door No 59 36 Dulcie Holland Crescent, Moncrieff ACT (being Unit 59 of Block 1 Section 16 Moncrieff). (4) On Friday 10 July 2026 at 3 pm, or at such time as is otherwise agreed between the parties, the defendant is to provide access to the property to the plaintiff, or their authorised agent, for the purpose of assessment and appraisal for the sale or other proposed entitled dealing with the property. (5) The parties have liberty to apply on 3 days’ notice. (6) The defendant is to provide vacant possession of the property by 31 July 2026 at 5 pm. (7) Costs are reserved.

2. I reserved my reasons which are now set out below.

3. Ms Taruvinga is the owner of an apartment in a residential development at Moncrieff in the ACT. In June 2022, she obtained a home loan from Westpac Banking Corporation via the Rams Home loans brand. She gave a mortgage over her Moncrieff property as security for the loan. The initial loan amount was $617,407. The loan was for a term of 30 years and subject to a variable loan interest rate. The mortgage in favour of Westpac was registered on the title to the property. The terms of the loan agreement included an obligation to make repayments in accordance with the schedule forming part of the agreement and empowered the lender to, amongst other things, take possession of the security property where the borrower fell into default in respect of those payments.

4. Westpac contends Ms Taruvinga has fallen into significant default and they seek orders for possession of the property.

5. The proceedings were originally commenced by originating claim and statement of claim and Ms Taruvinga filed a defence. Since the filing of her defence, she has played no active part in the proceedings, and she did not appear when the application was listed before me on 3 July 2026. I note her defence does not traverse the critical issues in the matter, namely, the issue of default and its consequences under the terms of the agreement. The basis for the lender’s application

6. The application for possession of the land and for Ms Taruvinga to vacate the premises is made under s 96 of the Land Titles Act 1925 (ACT) which provides: 96 Default, entry and possession—action for recovery The mortgagee or encumbrancee upon default in payment of the principal sum or any part thereof, or of any interest, annuity or rent charge secured by any mortgage or encumbrance may— (a) enter into possession of the mortgaged or encumbered land by receiving the rents and profits therefor; or (c) 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 or of encumbrance; in the same manner in which he or she might have made the entry or brought the action if the principal sum or annuity were secured to him or her by a conveyance of the legal estate in the land so mortgaged or encumbered.

7. Counsel for Westpac highlights the orders sought are limited to the steps necessary to secure possession of the mortgaged property with a view to its sale.

8. Section 31 of the Supreme Court Act 1933 (ACT) requires the court to give effect to a claim for relief in the nature of the claim that is made pursuant to s 96 of the Land Titles Act.

9. Section 93 of the Land Titles Act deals with the effect of a mortgage over land. As McWilliam J observed in Prime Capital Securities Pty Ltd v Nusage Pty Ltd [2024] ACTSC 36 at [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.

10. Additionally, s 88 of the National Credit Code (Cth) imposes notification requirements upon a lender seeking to exercise its rights in respect of a mortgagee in default: 88 Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor … Enforcement of mortgage (2) A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless: (a) the mortgagor is in default under the mortgage; and (b) the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and (c) the default has not been remedied within that period. (d) if the mortgage secures an obligation under a credit contract for a reverse mortgage, the credit provider has spoken to one of the following persons by telephone or in person in that period and has thus both confirmed that the mortgagor received the default notice and informed the person of the consequences of failure to remedy the default, or has made reasonable efforts to do so: (i) the mortgagor; (ii) a practising lawyer representing the mortgagor; (iii) a person with a power of attorney relating to the mortgagor’s financial affairs. Criminal penalty: 50 penalty units. Note: If a mortgagor has given a credit provider a postponement request there may be extra requirements that the credit provider must comply with before beginning enforcement proceedings: see section 94. Default notice requirements (3) A default notice must contain a prominent heading at its top stating that it is a default notice and specify: (a) the default; and (b) the action necessary to remedy the default; and (c) a period for remedying the default; and (d) the date after which enforcement proceedings in relation to the default, and, if relevant, repossession of mortgaged property may begin if the default has not been remedied; and (e) that repossession and sale of mortgaged property may not extinguish the debtor’s liability; and (f) the information prescribed by the regulations about the debtor’s right to: (i) give a hardship notice under section 72; or (ii) give a postponement request under section 94; or (iii) make an application to the court under sections 74 and 96; and (g) the information prescribed by the regulations about: (i) the AFCA scheme; and (ii) the debtor’s rights under that scheme; and (h) that a subsequent default of the same kind that occurs during the period specified for remedying the original default may be the subject of enforcement proceedings without further notice if it is not remedied within the period; and (i) that, under the Privacy Act 1988, a credit reporting body (within the meaning of that Act) may collect and hold default information (within the meaning of that Act) in relation to the default; and (j) any other information prescribed by the regulations. When default notice not required (5) A credit provider is not required to give a default notice or to wait until the period specified in the default notice has elapsed, before beginning enforcement proceedings, if: (a) the credit provider reasonably believes that it was induced by fraud on the part of the debtor or mortgagor to enter into the credit contract or mortgage; or (b) the credit provider has made reasonable attempts to locate the debtor or mortgagor but without success; or (c) the court authorises the credit provider to begin the enforcement proceedings; or (d) the credit provider reasonably believes that the debtor or mortgagor has removed or disposed of mortgaged goods under a mortgage related to the credit contract or under the mortgage concerned, or intends to remove or dispose of mortgaged goods, without the credit provider’s permission or that urgent action is necessary to protect the mortgaged property. …

11. The matters of which I need to be satisfied before orders of the kind sought by Westpac may be made are: (a) the existence of a mortgage within the meaning of the Land Titles Act over the subject property in favour of the lender; (b) evidence of an event of default within the meaning of the loan agreement pursuant to which the mortgage was given; and (c) evidence of satisfaction of the threshold notice requirements before enforcement action can proceed.

Is there a mortgage?

12. A mortgage is defined in the Dictionary to the Land Titles Act as “any charge on land created merely for securing a debt”. In evidence before me is an ACT title search for the property demonstrating the existence of a mortgage in favour of Westpac over the subject property bearing registration number 3173178. The title search accords with the copy of the mortgage signed by each of the parties.

13. The documents in concert demonstrate that Westpac was a registered mortgagee and Ms Taruvinga was a registered mortgagor of the subject property.

Is there evidence of an event of default within the meaning of the loan agreement?

14. The relevant terms of the loan agreement are: (a) Ms Taruvinga was to pay Westpac the loan amount in fortnightly instalments subject to a 2.69% per annum interest rate; the estimated repayment figure was $1,153.82 per fortnight: Essential Home Loan Agreement Details section, Clauses 8, 17 and 18 of Part A of the Loan Agreement. (b) Should Ms Taruvinga fall into default, the default interest rate would be 4.69% per annum (2% on top of the normal interest rate): Essential Home Loan Agreement Details section ‘Other information’, Clause 28.3 of Part A of the Loan Agreement. (c) Ms Taruvinga gave security of her property and is therefore subject to Clause 4 of Part A of the Loan Agreement which secures the guarantee as well as the loan contract. (d) After service of notice, Ms Taruvinga would have 31 days to rectify any default before all amounts payable under the loan contract may become immediately payable: Clause 27.1 of Part A of the Loan Agreement. (e) Ms Taruvinga is required to pay all fees and charges set out in the Details of the loan agreement including government charges: Clause 18 of Part A of the Loan Agreement. (f) A default event would occur if Ms Taruvinga: (i) failed to pay an amount owed under the loan contract; (ii) did not comply with relevant statutory obligations; (iii) engaged in misleading conduct in relation to the loan contract or relevant security; or (iv) used the loan for an unapproved purpose: Clause 26 of Part A of the Loan Agreement. (g) The action available to the Lender upon default occurring is to issue a default notice granting 31 days for the default to be rectified. Thereafter the Lender has the ability to require the payment of all amounts secured by the loan agreement as well as charge the higher default interest rate on any charged amount overdue: Clause 26 of Part A of the Loan Agreement. As the mortgage was granted in security, interest in the property reverts to the Lender if the obligations under the loan agreement are not fulfilled: Part F of the Loan Agreement, Information Statement and Clause 4 of the Loan Agreement.

15. In evidence before me is an account transaction statement for the subject loan evidencing progressive default events from approximately May 2023 and continuing to the point where arrears as at 22 May 2026 amounted to in excess of $140,000. Virtually no repayments have been made since about March 2025.

16. The evidence is sufficient to demonstrate a series of defaults within the meaning of the loan agreement and a continuing default creating an entitlement to an order for possession under s 96 of the Land Titles Act.

Are the threshold notice requirements satisfied?

17. As a precursor to any action to take possession of and sell mortgaged land it is necessary first to give notice of that intent pursuant to s 93 of the Land Titles Act. Such notice may be given where there is an event of default under the loan agreement, and the default is continued for a period of one month or such other period of time as expressly provided in the loan document. To similar effect is the notice obligation arising under the National Credit Code. Section 88(2) of the National Credit Code is in the terms I have set out earlier.

18. In evidence before me is a default notice issued to Ms Taruvinga by lawyers acting on behalf of the lender: (a) advising her the loan is in default; (b) informing her of the need to pay the arrears to remedy the default; and (c) giving her at least 31 days to do so.

19. In addition to the notice requirements described above, s 89A of the National Credit Code imposes an additional obligation upon a lender before commencing enforcement proceedings in circumstances where a hardship notice has been given by the borrower. In that event the lender is required to give a notice to the borrower confirming the lender has not agreed to change the credit contract in accordance with s 72 (4) of the National Credit Code. Ms Taruvinga provided a hardship notice before enforcement proceedings commenced. The letter forwarded to Ms Taruvinga on 14 November 2025 satisfied the lender’s hardship requirements in that: (a) it confirmed rejection of the request for hardship assistance and variation of the loan; (b) it explained the lender’s reasons for rejecting the request; and (c) it advised her of her rights under the Australian Financial Complaints Authority (AFCA) scheme and provided the name and contact details for AFCA.

20. That notice was given more than 31 days before the commencement of these enforcement proceedings, and I am satisfied all relevant notice provisions have been met.

Orders

21. For the foregoing reasons the orders made on 3 July 2026 were: (1) Leave is granted to file in Court the amended application in proceeding dated 1 July 2026. (2) Pursuant to r 38 of the Court Procedures Rules 2006 (ACT), these proceedings are to continue as if started by originating application. (3) Pursuant to s 96 of the Land Titles Act 1925 (ACT) and registered mortgage dated 14 July 2022, bearing registration number 3173178, the plaintiff is granted exclusive possession of the property described as Door No 59 36 Dulcie Holland Crescent, Moncrieff ACT (being Unit 59 of Block 1 Section 16 Moncrieff). (4) On Friday 10 July 2026 at 3 pm, or at such time as is otherwise agreed between the parties, the defendant is to provide access to the property to the plaintiff, or their authorised agent, for the purpose of assessment and appraisal for the sale or other proposed entitled dealing with the property. (5) The parties have liberty to apply on 3 days’ notice. (6) The defendant is to provide vacant possession of the property by 31 July 2026 at 5 pm. (7) Costs are reserved.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: 10 July 2026