Rimmer v Bourke [2005] NSWSC 205

The defendant borrowed $100,000 from the plaintiff which was secured over the defendant’s land by a mortgage. The lender sought possession of the land upon default by the borrower in making repayments. The defendant denied any default had occurred.

The mortgage document failed to specify the date by which the principal was to be repaid. The lender argued that in the absence of a final date for repayment, repayment was due upon demand. A demand was made in compliance with s 57(3) Real Property Act 1900 and notice of the exercise of the power of sale was given in accordance with s 57(3)(d).

The failure to respond to the lender’s demand of repayment was relied upon as an act of default, giving rise to statutory powers the statutory powers under the Real Property Act and the Conveyancing Act, including the right to bring proceedings for the recovery of possession under s 60 of the Real Property Act.

There was no dispute that the principal had not been repaid. The central issue was the amount of interest that had been paid under the mortgage which Justice Levine determined, based on the evidence, in favour of the plaintiff. There was no question of legally principle involved in determining the amount of interest paid. As a result, Justice Levine ordered a judgement sum to be paid to the plaintiff, judgement for possession of the land, and granted the plaintiff leave to issue a writ for possession.  

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