Baker-Crooks v Separovich [2017] NSWSC 708

Supreme Court New South Wales

Medium Neutral Citation: Baker-Crooks v Separovich [2017] NSWSC 708 Hearing dates: 5 June 2017 Date of orders: 07 June 2017 Decision date: 07 June 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Declare that the Plaintiff has, and is entitled to exercise, a power of sale in respect of the property comprised in folio identifier 1/748041 and known as 51 Barry Street, Neutral Bay in the state of New South Wales (the Property);

(2) Declare that the Plaintiff is entitled to possession of the Property;

(3) Order that the Defendant within seven days of the service of these orders upon her deliver up the Certificate of Title for the Property to Somerville Legal, Level 10, 32 Walker Street, North Sydney, NSW;

(4) Judgment for the Plaintiff for possession of the Property;

(5) Leave to the Plaintiff to issue a writ of possession forthwith to enforce the judgment of the Court;

(6) Grant liberty to the parties to apply generally on 2 days' notice. Catchwords: REAL PROPERTY – mortgages – unregistered mortgage – mortgage entered into pursuant to a deed – obligation of the mortgagor to produce the certificate of title to enable registration – breach of that obligation – default under the mortgage by that breach – rights of the mortgagee – whether judgment for possession could be given – contractual agreement for sale of property in the event of breach – whether powers under s 60 Real Property Act incorporated into the mortgage - possession as an incident of the power of sale – declarations made of plaintiff's entitlement to possession and sale – judgment for possession Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Antrim Land Co v Stewart [1904] 2 IR 357 General Finance Co v Liberator Benefit Building Society (1878-9) 10 Ch D 15 Harden Shire Council v Richardson [2012] NSWSC 622 King Investment Solutions v Hussain [2005] NSWSC 1076 King Investment Solutions Pty Ltd v Fahmi Mustafa Hussain & Meraj Ather Hussain [2010] NSWSC 821 Mills v Lewis (1985) 3 BPR [97205] Sutherland v Ghougassian (No 2) [2012] NSWSC 325 Category: Principal judgment Parties: Margaret Anne Baker-Crooks (Plaintiff) Katharine Lea Separovich (Defendant) Representation: Counsel: M Newton (Plaintiff) No appearance (Defendant)