RHG Mortgage Corporation v Astolfi [2011] NSWSC 1526

The borrower defaulted on its mortgage and the lender sought possession. The lender’s claim to possession was not disputed. The court held that the borrower’s defence that her loan had been securitised did not preclude the lender as registered mortgagee from being able to obtain possession based on the indefeasibility provisions of the Real Property Act 1900. The court based their finding on the facts that there had been no legal assignment of the loan and the lender remained as mortgagee on the title. The court also dismissed the borrower’s defence that commissions on the loan had been concealed, contrary to the Credit Code. The court found that no commissions were paid other than those disclosed in the loan and even if they had been, this does not provide any defence to a lender’s claim, only a right to compensation.

The court held that the lender was entitled to possession and gave leave for a writ of possession to be issued.

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