Elite Promotion & Management Pty Ltd v 5A Investments Pty Ltd; Application of Kingsway Group Ltd [2010] NSWSC 1098

New South Wales Supreme Court

CITATION : Elite Promotion & Management Pty Ltd v 5A Investments Pty Ltd; Application of Kingsway Group Ltd [2010] NSWSC 1098

HEARING DATE(S) : 10 September 2010 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 10 September 2010

DECISION : Order that Kingsway Group Limited ACN 089265127 be added as third defendant in the proceedings

CATCHWORDS : PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Parties – Joinder and addition of parties

CATEGORY : Procedural and other rulings

Kingsway Group Limited (applicant) Elite Promotion & Management Pty Ltd (plaintiff) PARTIES : 5A Investments Pty Ltd (first defendant) Alex Georgeski (second defendant)

FILE NUMBER(S) : SC 09/289211

Mr G Burton SC (applicant) COUNSEL : Mr R Goodridge (plaintiff) Mr S Barry (sol) (second defendant)

Willis & Bowring (applicant) SOLICITORS : Simpson Freed (plaintiff) CKB Partners (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday, 10 September 2010

2009/289211 Elite Promotion and Management Pty Ltd v 5A Investments Pty Ltd JUDGMENT (ex tempore) 1 HIS HONOUR: These proceedings are listed before me for hearing for three days commencing on Wednesday 22 September 2010. Very belatedly, by motion filed on 6 August 2010, the mortgagee of the premises, the lease of which is at the core of these proceedings, between the lessee plaintiff who seeks against the lessor defendant declarations that it is entitled to an amount by way of credit in relation to rent and an order charging the property with that amount, seeks to be joined as a defendant. 2 The mortgagee has entered into possession of the premises and is in receipt of the rents. The lessee, while contending that it does not "in the present proceedings" assert that the charge for which it contends would have priority over the mortgagee's interest, does not eschew the possibility that it would at some later stage advance such a contention. As the mortgagee is in possession and in receipt of the rents, a finding that the lessee was entitled to credit in respect of rent payable under the lease might well impact directly on the mortgagee. In any event, the quantum of any such credit could impact on the mortgagee if, in due course, it were held that the charge contended for by the lessee took priority over the mortgagee's interest. 3 In those circumstances, and as the lessee would not accept that the question of the quantum of any such credit would remain available for re-litigation between the lessee and the mortgagee, it seems to me abundantly clear that the mortgagee has an interest which is liable to be affected by the relief sought by the lessee in these proceedings, and is therefore a necessary party to the proceedings and must be joined.