ROBINSON v NISHTOM PTY LIMITED & ANOR [2009] NSWSC 36

New South Wales Supreme Court

CITATION : ROBINSON v NISHTOM PTY LIMITED & ANOR [2009] NSWSC 36

HEARING DATE(S) : Thursday 4 December 2008

JUDGMENT DATE : 13 February 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

On the defendants' notice of motion, orders made as follows:- 1. Pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW):- (a) Orders 1, 2 and 3 of the Statement of Claim be dismissed; and DECISION : (b) Paragraphs 5, 6, 7, 11, 12, 13, 14 (in regards to "Mortgage, Memorandum of Mortgage"), 15, 16, 17, 24, 25, 26, 28, 29, 31 and 32 of the pleadings and particulars therein, are struck out. 2. Proceedings be removed from the Possession List. On the plaintiff's notice of motion, the claim for Order 1 is dismissed. The proceedings are to be re-listed for directions in relation to the plaintiff's claim for an order for repayment of the amount of $400,000 together with interest and costs.

CATCHWORDS : LOANS – a loan by way of vendor finance – under special conditions in Contract for Sale vendor occupied property under licence – express terms as to licence fee payable by vendor during term of licence or date of vacant possession, whichever is the later – remained in occupation beyond six month term – stock and car parts and other objects left on site – no vacant possession prior to clean-up of site in 2008 – undated Loan Agreement and undated Mortgage – executed some time after Contract for Sale - MORTGAGE – failed to specify loan secured – undated Loan Agreement did not purport to vary Contract for Sale the terms for repayment of which differed – could not be read together – Mortgage did not secure the monies the subject of the vendor finance loan - VENDOR – PURCHASE – what constitutes vacant possession – plaintiff's (bankrupt vendor's trustee in bankruptcy) claim for order for possession dismissed pursuant to Part 13 Rule 13.4(1)(b)