First Mortgage Managed Investments Ltd v Skyfarm Holdings Pty Ltd [2010] NSWSC 58

New South Wales Supreme Court

CITATION : First Mortgage Managed Investments Ltd v Skyfarm Holdings Pty Ltd [2010] NSWSC 58

HEARING DATE(S) : 10 February 2010

JUDGMENT DATE : 12 February 2010

JUDGMENT OF : Hoeben J at 1

DECISION : Judgment for possession in favour of plaintiff. Plaintiff stayed from taking steps to exercise its right of possession in respect of one of the properties but leave granted to issue Writ of Possession in relation to the other. Defendant to pay costs of motion. Liberty to either party to apply on five days notice.

CATCHWORDS : Claim for possession of land - motion for summary judgment - whether service of notice under section 8 Farm Debt Mediation Act 1994 was effective - whether plaintiff entitled to bring proceedings.

LEGISLATION CITED : Farm Debt Mediation Act 1994

CATEGORY : Principal judgment

PARTIES : First Mortgage Managed Investments Ltd - Plaintiff Skyfarm Holdings Pty Ltd - Defendant

FILE NUMBER(S) : SC 2009/00295122; 2009/13280

COUNSEL : Mr G George - Plaintiff Mr P Cutler - Defendant

SOLICITORS : Boyce Lawyers - Plaintiff A R Walmsley & Co - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Friday 12 February 2010

2009/00295122 - FIRST MORTGAGE MANAGED INVESTMENTS LIMITED v SKYFARM HOLDINGS PTY LIMITED

JUDGMENT 1 HIS HONOUR: Nature of proceedings By an agreement dated 27 October 2006 between the plaintiff as lender and the defendant as borrower, the plaintiff loaned to the defendant $2,710,000. That amount was secured by mortgages over five parcels of land at Kurrajong Heights. 2 The defendant defaulted in payments of interest under the loan, which on the plaintiff's case, led to the principal under the loan, together with outstanding interest, becoming due on 27 October 2008. 3 Proceedings for possession of the mortgaged land were commenced by the plaintiff on 30 June 2009. Between that date and the date on which this motion was heard, three of the parcels of land have been sold by the defendant and the proceeds of those sales have been accounted to the plaintiff by way of reduction of the debt owing to it. At the hearing of this motion, the amount owed by the defendant to the plaintiff by way of principal and interest was $2,458,038.34. 4 By motion filed 2 February 2010 the plaintiff seeks summary judgment for possession of the two remaining unsold parcels of land, the subject of the mortgage, i.e. the property known as 1366 Bells Line of Road, Kurrajong Heights (the Lot 1 property) and the property known as Lot 30, Leidich Lane, Kurrajong Heights (the Lot 30 property). 5 The notice of motion came on for hearing on 10 February 2010. All evidence was by way of affidavit and no cross-examination of the deponents took place. This judgment is in respect of the notice of motion.