NSW Caselaw
New South Wales Supreme Court
CITATION : Magar v Arab Bank Australia Ltd; Bournelis v Aldi Petroleum Pty Ltd [2010] NSWSC 553
HEARING DATE(S) : 13 May 2010
JUDGMENT DATE : 28 May 2010
JURISDICTION : Common Law; Equity
JUDGMENT OF : Ward J
2010/028376 DECISION : Injunctive relief to be granted on an interlocutory basis, subject to undertakings to be settled 2010/099040 Receivers' application for declaratory relief and consequential orders refused
CATCHWORDS : REAL PROPERTY - whether receivers appointed by mortgagee to mortgagor's leasehold interest (and acting in their capacity as mortgagor's agent) are entitled to possession of premises as against third party claiming under unregistered agreement to sub-lease - injunction sought by party claiming interest as sub-lessee to restrain receivers' interference with occupation or possession of premises - HELD - declaration as to receivers' entitlement to possession refused - serious question to be tried concerning the existence of a binding sub-lease agreement between mortgagor and alleged sub-lessee (and as to claim that mortgagor estopped from denying sub-lease) - balance of convenience considered - interlocutory injunction (subject to undertakings) granted to restrain receivers (acting in their capacity as agents of mortgagor but not otherwise) from interfering with possession by alleged sub-lessee pending determination of substantive proceedings or further order
LEGISLATION CITED : Real Property Act 1900 (NSW) Trade Practices Act 1974 (Cth)
ACN 113 137 397 v Winterbottom [2010] NSWSC 421 AMEV Finance Ltd v Canagon Engineering Pty Ltd (1987) 6 BPR 13,899 Antar v Fairchild Development Pty Ltd (R&M App) and Ors [2008] NSWSC 638 Bahr v Nicolay No. 2 [1988] HCA 16; (1988) 164 CLR 604 ; (1988) 78 ALR 1 CASES CITED : Eltran Pty Ltd v Westpac Banking Corp (1988) 32 FCR 195 Expo International v Chant [1979] 2 NSWLR 820 Harris v Western Australian Exim Corp (1994) 129 ALR 387 Lake Eerie Pty Ltd (Receiver and Managers appointed) Ltd v Flair Realty Pty Limited [1992] ANZ ConvR 627; (1992) Q ConvR 54-420 Re Leyland DAF Ltd [1994] 1 BCLC 264
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