Applications for summary judgment and to set aside a subpoena for production issued at the defendant’s request. The court considered two issues: that the plaintiff “sold and transferred to a trust its legal and equitable rights to mortgage deed … soon after execution of the mortgage”, and that the original mortgage document had not been produced, and until the original was produced the Court could not be satisfied that the plaintiff had any “legal and equitable rights as mortgagee”.
Regarding the first issue, the court found that none of the evidence adduced by the defendant supported the defendant’s allegation that the mortgage has been sold, transferred or assigned to the Torrens Trust. This Trust was a special purpose vehicle to which the plaintiff assigned only residential “Housing Loans” originated by the bank that are regulated under the National Consumer Credit Protection Act 2009 (Cth). Since the mortgaged property was a rural property that was not regulated under the National Consumer Credit Protection Act, the loan transactions had not been securitised in the relevant Trust. The court held there was no reliable or probative evidence supporting the defendant’s claims.
For the second issue, the defendant asserted that the original mortgage document had not been produced, and until the original was produced the Court could not be satisfied that the plaintiff had any “legal and equitable rights as mortgagee”. The court found that the defendant’s submission that the plaintiff had exhibited copies of the same mortgage with different notations than the mortgage originally signed was of no substance. The defendant made no allegation of fraud or forgery, and the different notations noting the registered dealing number and that it is a “duplicate” did not invalidate the instrument or prove any other matter.
The defendant’s requested subpoena for production was also set aside, as the court considered it a “fishing exercise” to support his unsubstantiated allegations.
Ultimately, the plaintiff’s application for a summary judgement r 292 of the UCPR was allowed, and the defendant’s counterclaim for a summary judgement against the plaintiff under UCPR r 293 was dismissed.
David Chesterman appeared for the plaintiff, instructed by Corrs Chambers Westgarth.
The judgment is published here.