Mango Media Pty Limited v Smith [2012] NSWSC 686

Supreme Court New South Wales

Medium Neutral Citation: Mango Media Pty Limited v Smith [2012] NSWSC 686 Hearing dates: 25 May 2012; 8 June 2012 Decision date: 21 June 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a)Order that the agreement contained in the Mortgage granted 5 September 2011, by the first Defendant to the Plaintiff, be specifically performed by the first Defendant giving to the Plaintiff possession of the land contained within Folio Identifier 46/xxxx being the property known as xxxxx Taylor Street, Narrabri, New South Wales ("the Property") within 28 days of the date hereof. (b)By way of enforcement of Order (a) above, judgment for the Plaintiff against the first Defendant for possession of the Property. (c)Order that the first Defendant deliver possession of the Property to the Plaintiff within 28 days of the date of the making of this order. (d)Order that leave to issue a writ of possession for the Property forthwith be granted to the Plaintiff, but such writ shall not be executed until 30 days after the making of these orders. (e) Direct that within 14 days of being requested, in writing, to do so, the second Defendant advise the Plaintiff, in writing, of the minimum price figure in accordance with Paragraph 4(a) of the notice of motion filed 18 May 2012. (f)Order that the Property be sold by the Plaintiff in accordance with Paragraphs 3 and 4 of the notice of motion filed 18 May 2012. (g)Order that the Plaintiff be appointed to transfer the Property to the purchaser(s) thereof to effectuate the sale. (h)Declare that from date of the exchange of contracts for sale of the Property until completion of that sale, the Plaintiff will be trustee of the Property for the purchaser or purchasers of the Property. (i)Order that after the payment of all expenses in respect of the sale, the sale proceeds of the Property be applied so as to pay to the second Defendant the amount secured by the second Defendant's mortgage being mortgage registered number xxx, and the costs of these proceedings as set out below, and any other encumbrances of the Property in order of priority in accordance with their terms pursuant to the Real Property Act then to the Plaintiff in satisfaction of the Plaintiff's Mortgage, interest and costs, with any residue to be paid to the first Defendant. (j)Note the agreement of the Plaintiff that at all times it will act when selling the Property in accordance with the duties of a mortgagee exercising a power of sale. (k)Order that the first Defendant pay the Plaintiff's costs of the proceedings. (l)Order that the first Defendant is to pay the second Defendant's costs of obtaining advice on the Plaintiff's claim and filing a submitting appearance. (m)Direct that within 7 days of the making of these orders, the Plaintiff provide to the first Defendant's solicitor, in writing, an itemised statement of the current pay-out figure as at that date and an estimate of its costs. (n)Order, in the event that the first Defendant pays the amount due to the Plaintiff under the Plaintiff's mortgage and its costs within 28 days, that these orders shall be permanently stayed. (o)Order that the second Defendant attend upon any settlement of the contract for the sale of the Property and upon being paid the amount due under its mortgage deliver to the Plaintiff, or as it may direct, all deeds or documents of title in the second Defendant's control relating to the Property as may be properly required for the completion of any such sale. (p)Liberty to apply to each of the parties, and to any other party claiming an interest in the Property, with respect to any matter that may arise in relation to the sale of the Property or to the distribution of the sale proceeds be granted. (q)Reserve further consideration in respect of further or other orders as may be required to effectuate judicial sale of the Property and to enable judgment for the amount due under the Plaintiff's mortgage. (r)These orders shall be entered with the details of the complete title reference and address of the Property and of any particulars of mortgage being inserted. Catchwords: Orders sought for judicial sale and consequential relief Legislation Cited: Real Property Act 1900 Uniform Civil Procedure Rules 2005 Uniform Consumer Credit Code Cases Cited: Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 Chateau Constructions (Aust) Ltd v Zepinic [No 5] [2010] NSWSC 265 Harden Shire Council v Richardson [2012] NSWSC 622 King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 Mango Media Pty Ltd v Mertes & Anor [2006] NSWSC 1460: (2006) 14 BPR 26,971 Phillips v Hogg [2001] QSC 390 Sood v Christianos [2008] NSWSC 1018 Category: Procedural and other rulings Parties: Mango Media Pty Limited (Plaintiff) Jeffrey Dennis Smith (first Defendant) Northern Inland Credit Union Ltd (second Defendant) Representation: Counsel: Ms P Clingan (Plaintiff) No appearance (first Defendant) Ms K Millist-Spendlove (second Defendant) Solicitors: Diamond Conway (Plaintiff) Robert Watson Solicitor (as agent for first Defendant) The Law Company (second Defendant) File Number(s): 2012/89875