Morris Finance Ltd v Free [2017] NSWSC 1417

Supreme Court New South Wales

Medium Neutral Citation: Morris Finance Ltd v Free [2017] NSWSC 1417 Hearing dates: 7 July 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Pursuant to the Court's inherent jurisdiction, the land identified in Schedule A ("the Property") be sold by the plaintiff subject to the supervision of the Court. (2) By way of order ancillary to order 1, the third and fourth defendants deliver up vacant possession of the Property to the plaintiff on or before 31 January 2018. (3) Leave is granted to the plaintiff to issue a Writ of Possession forthwith, such writ not to be executed earlier than 2 February 2018. (4) The plaintiff shall conduct the sale by public auction or, if not sold at auction, by private sale, and pay the proceeds of sale in the following order: (a) first, for all the proper costs and expenses relating to the sale of the Property; (b) second, as to any remaining proceeds of sale after payment in accordance with order 4(a), the whole of the amount due to the fifth defendant pursuant to registered mortgage 8421415; (c) third, as to any remaining proceeds of sale after payment in accordance with order 4(b), the whole of the amount due to the plaintiff in discharge of its interest in the Property; (d) fourth, as to any remaining proceeds, such sum shall be paid as to half to the first defendant and as to the other half to the second defendant (with the effect that the first and second defendants shall each receive an equal share of such moneys). (5) The plaintiff shall act at all times in relation to the selling of the Property in accordance with the duties owed by a mortgagee in exercising a mortgagee's power of sale. (6) Prior to offering the Property for sale, the plaintiff shall consult with and obtain advice from a real estate agent or valuer before seeking to fix a reserve sale price of the Property. (7) The plaintiff is appointed to transfer the Property to the purchaser(s) thereof to effect the sale and the plaintiff is granted the power to transfer the Property and all the interests of the first defendant, second defendant, third defendant and/or fourth defendant in the Property to the purchaser(s), subject only to the registered mortgage of the fifth defendant. (8) Liberty to the parties, including the plaintiff, to apply, on 3 days' notice in writing, for such further or other orders as may be necessary or appropriate concerning the implementation of these orders or for any necessary or appropriate variation to these orders. (9) For the purpose of entering the order for possession and the entry of any writ of possession in accordance with these orders, transfer the proceedings (other than the remaining issue as to costs) to the Possession List in the Common Law Division of this Court. (10) Reserve the question of costs and direct the plaintiff and the first defendant to file and serve brief written submissions on costs within 14 days of the date of these orders, with a view to costs then being dealt with on the papers. Catchwords: EQUITY – Equitable charges and liens – Creation – Whether lease agreement contained language sufficient to create a charge