Marina Blue Pty Limited v Gear (No 2) [2018] NSWSC 1442

Supreme Court New South Wales

Medium Neutral Citation: Marina Blue Pty Limited v Gear (No 2) [2018] NSWSC 1442 Hearing dates: 27 August 2018 Date of orders: 26 September 2018 Decision date: 26 September 2018 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) The defence filed 12 March 2018 is struck out pursuant to rule 13.1 or rule 14.15(3) of the Uniform Civil Procedure Rules 2005 (NSW).

Judgment

(2) Judgment is entered in favour of the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/XXXXX, being the land situated at and known as XX Wartlers Street, Port Macquarie.

The Court further orders that:

(3) The plaintiff is to file and serve written submissions on the defendant and my associate by email as to when the writ of possession should issue by 5.00 pm on 27 September 2018.

(4) The defendant is to file and serve on the plaintiff and my associate by email as to when the writ of possession should issue by 5.00 pm on 4 October 2018

(5) The defendant is to pay the plaintiff's costs on an ordinary basis. Catchwords: CIVIL PROCEDURE – Summary disposal – Judgment for the plaintiff – No defence

LAND LAW – Adverse Possession – Possessory application over Torrens title land – Real Property Act 1900 (NSW), ss 45D and 45E – whether the defendant was in possession of the property

CORPORATIONS – Reinstatement – Corporations Act 2001 (Cth), ss 601AH and 1322 – whether Court can order an incorrect reinstatement by ASIC is void – whether the defendant has standing to make the application Legislation Cited: Corporations Act 2001 (Cth), ss 201A, 601AB, 601AH and 1322 Federal Court of Australia Act 1976 (Cth), s 31A Limitation Act 1969 (NSW), s 27 Real Property Act 1900 (NSW), ss 45D and 45E Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW), 13.1 and 14.15 Cases Cited: Marina Blue Pty Limited v Gear [2018] NSWSC 824 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Re Peter Conyers Holdings Pty Ltd (in liq) (1996) 14 ACLC 1835 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Westbury Holdings Kiama Pty Ltd v ASIC (2007) 25 ACLC 710; [2007] NSWSC 466 Texts Cited: Robert Austin and Ashley Black's Austin & Black's Annotations to the Corporations Act (2018, LexisNexis Australia) F Burns, 'Adverse Possession and Title-by-registration Systems in Australia and England' (2011) 35 Melbourne University Law Review 773 Category: Procedural and other rulings Parties: Marina Blue Pty Limited (Plaintiff) Trevor Gear (Defendant) Representation: Counsel: G Rundle (Plaintiff)