Westpac v Thurairajah [2009] NSWSC 442

The borrower in this case sought orders that the default judgement for possession obtained by the lender be set aside. This was on three grounds:

  1. she had not been served with the statement of claim,
  2. the lender had refused to allow her to redraw the facility and
  3. the lender had refused to allow her to redeem (payout) the mortgage.

In relation to the claim that she had not been served the Court noted that in fact, an order for substituted service was made, following a series of unsuccessful attempts by the mortgagee to effect personal service. His Honour reviewed the evidence tendered in support of that application for the making of the order for substituted service and found it to be satisfactory. In accordance with the order, the statement of claim was served by affixing a sealed copy with a cover sheet to the front door of the mortgaged property. In addition the Court noted that the mortgage provided for service by leaving the statement of claim at the mortgage property – this is valid service pursuant to rule 10.6 of the Uniform Civil Procedure Rules 2005.

In relation to the complaint that redraw was not allowed, the judge found there can be no redraw when the loan was fully drawn. In relation to the allegation that the the lender had refused to allow her to redeem the mortgage His Honour noted:

On the evidence before me, it simply cannot be found that there is any arguable case that the mortgagee denied, or obstructed, redemption by the mortgagor. The mortgagee acted reasonably and appropriately in response to the request of early August 2007. Above all, and fundamentally, however, the mortgagor has not shown that she was at any time, past or present, ready, willing or able to redeem. She did not tender any sum of money.

In summary, Justice Barrett concluded that she had not pleaded even remotely arguable ground of defence. This was quite surprising considering that she was in fact a practicing solicitor.

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