The plaintiffs sought summary judgement for recovery of loans secured by a mortgage over a property. In Bendigo and Adelaide Bank Ltd v Prichard [2021] QSC 179, the defendant did not dispute that the moneys are owed and that he granted a mortgage, but rather, requested trial by jury, and alleged that the plaintiff has neither the legal nor equitable standing to seek relief because the plaintiff “sold and transferred to a trust its legal and equitable rights to mortgage deed … soon after execution of the mortgage” and, until the original mortgage document is produced, the Court cannot be satisfied that the plaintiff has any “legal and equitable rights as mortgagee”.
Flanagan J held that there is no reliable or probative evidence that the loans were securitised in the Torrens Trust or any other trust, and even if they were, under the terms of the trust deed, the plaintiff would be expressly entitled to prosecute the present claim against the defendant. The plaintiff referred to the decision of the Court of Appeal of Western Australia in McLean v Westpac Banking Corporation [2012] WASCA 152 where Newnes JA (with whom Murphy JA agreed) referred to the defence of “securitisation” in the following terms (at 31):
“… ‘securitisation’ seems to be something of the defence du jour among self-represented defendants resisting actions for possession by financial institutions. Its popularity is not, however, a reliable measure of its merit.”
Flanagan J entered summary judgement in the sum of $4,108,083.46, and ordered against the defendant possession of the property.
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