Integrated Securities No 3 Pty Ltd v Oceans 5 Ultimate Getaways Pty Ltd [2021] NSWSC 278

Supreme Court New South Wales

Medium Neutral Citation: Integrated Securities No 3 Pty Ltd v Oceans 5 Ultimate Getaways Pty Ltd [2021] NSWSC 278 Hearing dates: 24 March 2021 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Common Law Before: Davies J Decision: Plaintiff's Amended Notice of Motion filed 10 March 2021 granted in the following terms: An order pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 that there be summary judgment for the Plaintiff against the Second Defendant as follows: a. A declaration that the Second Defendant has in equity mortgaged the property situated at and known as 205 Rochford Street, Erskineville in the State of New South Wales 2043 being the whole of the land described in Certificate of Title Folio Identifier 7/SP75928 (205 Rochford Street) and charged the property with the repayment of all monies owing to the Plaintiff under the Agreement entered into between the Plaintiff and the First, Second, Third and Fourth Defendants on or around 9 August 2018; b. An order that the agreement between the Plaintiff and the First, Second, Third and Fourth Defendants be specifically performed by the Second Defendant; c. An order for judicial sale of 205 Rochford Street, with the Plaintiff to be appointed as the Court's agent for effecting that sale; d. An order that the Second Defendant provide vacant possession of 205 Rochford Street to the Plaintiff by 5 May 2021; e. Leave to issue a writ of possession such writ not to be executed before 6 May 2021; f. An order that the Plaintiff shall, with respect to the sale of 205 Rochford Street, act in the following fashion: i. The Plaintiff shall consult with the Fifth Defendant with respect to the sale of 205 Rochford Street and request from the Fifth Defendant the amount owing to the Fifth Defendant and secured against 205 Rochford Street (the Fifth Defendant's Mortgage Debt); ii. Unless the court otherwise orders, the Plaintiff shall not sell 205 Rochford Street at less than the Fifth Defendant's Mortgage Debt; and iii. In the event that the Fifth Defendant does not provide to the Plaintiff the Fifth Defendant's Mortgage Debt within 7 days of request, or if the Fifth Defendant's Mortgage Debt is a figure that the Plaintiff reasonably believes is unlikely to be realised or exceeded on a sale of 205 Rochford Street, the Plaintiff shall not proceed to sell 205 Rochford Street but shall instead cause the matter to be relisted before the Court for the purpose of the Court making directions as to a minimum reserve price for any auction and minimum sale price for any sale by private treaty. g. An order that the Plaintiff pay the proceeds of the sale of 205 Rochford Street in the following order; i. First, for all the Plaintiff's proper costs and expenses relating to the sale of 205 Rochford Street; ii. Secondly, any amount due to the Fifth Defendant pursuant to registered mortgage AC843765; iii. Thirdly, the whole of the amount due to the Plaintiff secured by the Plaintiff's equitable mortgage; iv. Fourthly, any surplus to be paid to the Second Defendant's Trustee in Bankruptcy. h. An order that the Plaintiff act in relation to the sale of 205 Rochford Street in the manner of a mortgagee exercising power of sale over that property, with the duties of such a mortgagee; j. An order that the Plaintiff be empowered to transfer the legal title of 205 Rochford Street to any purchaser(s) of 205 Rochford Street; k. Liberty to the parties, and to any other person claiming an interest in 205 Rochford Street, to apply with respect to any matters that may arise with respect to the sale of 205 Rochford Street and the distribution of the proceeds. Catchwords: LAND LAW – mortgages – possession of land – unregistered second mortgage – claim for possession - where mortgagor subsequently bankrupt – whether s 58 Bankruptcy Act precluded order for possession Legislation Cited: Bankruptcy Act 1966 (Cth) s 58 Contracts Review Act 1980 (NSW) s 7 Real Property Act 1900 (NSW) ss 57, 60 Uniform Civil Procedure Rules 2005 (NSW) r 13.1 Cases Cited: Hanshaw v National Australia Bank [2012] NSWCA 100 Harden Shire Council v Richardson [2012] NSWSC 622 King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 Mango Media Pty Ltd v Velingos [2008] NSWSC 202 National Australia Bank Limited v Strik [2009] NSWSC 184 Savieri v Brown [2008] NSWSC 1210 Scott v Wondal [2015] NSWSC 1577 Texts Cited: Butt's Land Law, 7th Edition, 2017, Thomson Reuters Australia Category: Procedural rulings Parties: Integrated Securities No 3 Pty Ltd (Plaintiff) Oceans 5 Ultimate Getaways Pty Ltd (First Defendant) Walid Chami (Second Defendant) Representation: Counsel: S Cominos (Plaintiff) No appearance (Second Defendant)