Monaco Solicitors Pty Ltd v Leotta [2013] NSWSC 1317

Supreme Court New South Wales

Medium Neutral Citation: Monaco Solicitors Pty Ltd v Leotta [2013] NSWSC 1317 Hearing dates: 10 September 2013 Decision date: 10 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Summary judgment for possession. Catchwords: POSSESSION - no question of principle. Legislation Cited: Contracts Review Act 1980 Cases Cited: Westpac Banking Corporation v Konneh [2013] NSWSC 1176 Category: Interlocutory applications Parties: Monaco Solicitors Pty Ltd (Plaintiff) Giuliana Leotta (Defendant) Representation: Counsel: A. Narayan (Plaintiff) Ms G. Penna (for Defendant, by leave) Solicitors: Elliott May Lawyers (Plaintiff) File Number(s): 2013/083233

Ex TEMPORE Judgment 1This is a notice of motion seeking summary judgment for possession of land at Rodd Point. 2The brief background is that in 2011 Giuliano Francesco Leotta and his associated company, Austech Laboratories Pty Ltd ("Austech"), entered into a transaction with the plaintiff under which the plaintiff advanced money to Austech, which was secured over Mr Leotta's property at Rodd Point. The nature of the security was a second mortgage. The first mortgage is held by Westpac Banking Corporation Ltd ("Westpac"). At some point the loan went into default. 3The plaintiff commenced proceedings seeking, inter alia, possession of the property at Rodd Point. Mr Leotta was the named defendant. He filed a defence which in substance only raised a defence under the Contracts Review Act 1980. 4At some point in July to August 2013 Mr Leotta became a bankrupt. As a consequence, the plaintiff has moved for summary judgment for possession of the property. The affidavit material reveals that it has served Mr Leotta's solicitors with the application. More significantly, it served his trustee in bankruptcy with the application and the material in support. 5On 9 September 2013 a solicitor for the plaintiff rang the trustee in bankruptcy, whose representative advised that they did not oppose the application for summary judgment. The affidavit material also reveals that occupier's notices have been served and have now expired. 6The position of Mr Leotta is that he now has no more than a bare legal interest in the property, which he holds for the benefit of the trustee. He has no interest in the proceedings brought against him for possession and no standing to be heard in defence of the plaintiff's claim (see Westpac Banking Corporation v Konneh [2013] NSWSC 1176 at [2] per Schmidt J). Thus, his Contracts Review Act claim, to the extent it seeks to attack the documents that give rise to the right of possession on behalf of the plaintiff, is now not maintainable. The other material indicates that absent that now defunct defence to the claim for possession, all the other prerequisites to an entitlement to possession have arisen. 7Finally, I should note that even though strictly the defendant has no standing to be heard on this application, attempts were made to contact him and solicitors who might now be acting for him, but they did not attend. 8Accordingly, I will grant the motion for summary judgment for possession. [DISCUSSION] 9Just prior to the making of orders, an acquaintance of Mr Leotta came to Court and provided assistance. She filed in Court an affidavit of Mr Leotta sworn on 9 September and an affidavit of George Koovousis sworn 10 September 2013. The material reveals that prior to him becoming a bankrupt he exchanged contracts for the sale of the Rodd Point property to Mr Koovousis and his wife. The date due for the completion of the sale is 14 October 2014. At best this material would go to some discretionary question as to whether a writ should be issued immediately or should wait. 10If possession was not granted in favour of the plaintiff, then the completion of the sale could only be arranged by the Trustee in Bankruptcy. 11Given the conversation that the Trustee's representative had with the plaintiff's solicitor's representative it seems apparent that they are not minded to take any steps to realise the sale of the land, given that they will not obtain any of the benefit of the proceeds. 12In those circumstances it seems to me that there really is nothing that can be said even to deny what is now clearly an entitlement on the part of the plaintiff to obtain possession. 13In effect, control over the sale of the property will now pass to the plaintiff and to the first mortgagee, Westpac. Whatever the position in terms of rights between those parties and the potential incoming purchasers does not affect my view that an order for possession should be made.