ACN 113 137 397 v Winterbottom [2010] NSWSC 421

New South Wales Supreme Court

CITATION : ACN 113 137 397 v Winterbottom [2010] NSWSC 421

HEARING DATE(S) : 29/4/10 JURISDICTION : Equity Division

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 29 April 2010

DECISION : Injunction continued until further order; ancillary orders.

CATCHWORDS : EQUITY – application by plaintiff lessee for interlocutory and final relief – where mortgagee from lessor appoints receivers to lessor - where receivers served notice on plaintiff to vacate – subsequent unregistered lease –– whether lease enforceable as between lessee and lessor notwithstanding that it is not enforceable against prior registered mortgagee – where receivers acted as agent of lessor and not as bank in possession – whether on breach receivers had right to exercise all rights and powers of mortgagee to possession – whether mortgagee had consented to lease – estoppel – whether mortgagee bound to consent – discretionary factors for whether to grant or withhold relief.

LEGISLATION CITED : Real Property Act 1900 (NSW)

CATEGORY : Procedural and other rulings

Antar v Fairchild Development Pty Ltd (R&M App) [2008] NSWSC 638 CASES CITED : Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Lake Eerie Pty Ltd (Receiver and Managers appointed) Ltd v Flair Realty Pty Limited (11 February 1992, unreported; BC 9202405)

ACN 113 137 394 Pty Limited (ACN 113 137 394) (Plaintiff) PARTIES : David John Winterbottom (First Defendant) Martin Madden (Second Defendant) Llerevni Pty Limited (ACN 089 415 145) (Receivers and Managers Appointed) (Third Defendant)