Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic [2014] NSWSC 218

Supreme Court New South Wales

Medium Neutral Citation: Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic [2014] NSWSC 218 Hearing dates: 14 and 16 January 2014 Decision date: 17 January 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: (1) Declare that such, if any, rights as the plaintiffs may have against the first defendant are subject to the entitlement of the fifth defendant to enforce its rights, as mortgagee under registered mortgage AG288789 (the subject of registered transfer AI163135 in favour of the fifth defendant) and registered mortgage AH459066. (2) Declare that the fifth defendant is entitled, as mortgagee, to possession of the land contained in folio identifier 100/7510 for the purpose of enforcement of its powers (including a power of sale) as mortgagee. (3) Order that the claims for relief made in paras 1-4 (inclusive) and 6-8 (inclusive) of the summons filed on 29 October 2013 be dismissed. (4) Order that the balance of the summons (namely, para 5 and any question of costs as between the plaintiffs and the first defendant) be stood over to the list of the registrar on 7 February 2014 at 9 am. (5) Order that the provisional listing of the proceedings before Stevenson J in the expedition list on 7 February 2014 (pursuant to orders made by Pembroke J on 20 December 2013) be vacated. (6) Order that the plaintiffs pay the costs of the proceedings of the fifth defendant and (to the extent that the fifth defendant has been substituted, by court order, to rights of the second defendant) the second defendant. (7) Direct that the solicitor for the defendants notify all other parties of these orders, in writing, no later than 24 January 2014. Catchwords: REAL PROPERTY - Mortgages - Application for judicial sale - Application by purchaser of mortgagor's estate seeking specific performance of purchase contract - Negative equity at purchase price - Mortgagor bankrupt - Trustee in bankruptcy not opposed to mortgagee entry into possession and improvement of property before sale - Purchaser's proceedings against mortgagee summarily dismissed