MINJAR HOLDINGS PTY LTD v DR FULLERTON AND CO LTD [1990] NSWCA 126

MINJAR HOLDINGS PTY LTD v DR FULLERTON AND CO LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY. CLARKE and MEAGHER JJA 24 May 1990, 24 May 1990

[1990] NSWCA 126

Appeal from Common Law Division — Summons for possession by mortgagee seeking possession of mortgaged property — Judge held puisne mortgagee entitled to order under s60 of Real Property Act 1900 — On appeal, appeal not pursued — Appeal dismissed — Application for stay of order for possession to allow for possible repayment of mortgage debt — Limited stay granted — No question of principle.

ORDERS

1. Appeal dismissed with costs;

2. Upon the motion now before the Court, execution of the writ of possession already issued be stayed until and including Tuesday, 12 June 1990; and

3. Appellant Minjar Holdings Pty Limited pay the costs of the motion.

Mahoney JA This is an appeal from Lusher AJ. His Honour heard an application for possession of premises the subject of a mortgage given by the appellant, Minjar Holdings Pty Ltd, to DR Fullerton and Co Pty Ltd. His Honour heard the application on 23 February 1990 and gave judgment on 27 February 1990.

By his judgment his Honour ordered that possession be given to the plaintiff and his Honour gave judgment in the sum of $2,693,349.70 as being money due and owing in accordance with the mortgage. A stay of execution of the order for possession was granted.

The court has been informed that a judge of this Court, Handley JA, granted a further stay of execution of the judgment until the disposal of the appeal or further order; the Court will act upon that basis.

The only ground of opposition to the order for possession taken before his Honour was, as his Honour said, that the claimant plaintiff, DR Fullerton and Co Pty Ltd, being puisne mortgagee of the premises, was not entitled to an order for possession under s60 of the Real Property Act 1900. His Honour held against that defence. The only matter that has been raised on appeal is that his Honour was wrong in so doing. No other point has been raised. I do not mean, by saying that, that I think some other point should have been raised but I record that is the only issue that has been before the Court of Appeal.