Charub Pty Ltd v Triandafyllou [2019] NSWSC 487

Supreme Court New South Wales

Medium Neutral Citation: Charub Pty Ltd v Triandafyllou [2019] NSWSC 487 Hearing dates: 23 April 2019 Date of orders: 03 May 2019 Decision date: 03 May 2019 Jurisdiction: Common Law Before: Davies J Decision: (1) Judgment for the plaintiff for possession of the whole of the land in folio identifier 701/1231641 being the land situated at and known as 5A Clareville Avenue, San Souci;

(2) The defendants are to pay the plaintiff's costs of the proceedings. Catchwords: LAND LAW – possession of land – application for summary judgment – mortgage given by the defendants as guarantors of a loan agreement – default of loan and mortgage obligations by defendants - whether defendants entitled to redeem the mortgage – whether an intention to sell the property is an offer of redemption – assignment of mortgage – no notice of assignment given – transfer of mortgage registered – no notice of assignment necessary to perfect assignment – ss 51 and 52 Real Property Act – whether a requirement of plaintiff to plead service of s 57(2)(b) notice – whether summary judgment should be granted – defendants' defences disclose no defence to the claim for possession – summary judgment given Legislation Cited: Conveyancing Act 1919 (NSW) s 12 Real Property Act 1900 (NSW) ss 51, 52, 57 Uniform Civil Procedure Rules 2005 (NSW) rr 4.11, 13.1, 14.28 Cases Cited: Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd [2013] NSWSC 1184 Duke Group Ltd (In Liq) v Arthur Youn (Reg) and Peat Marwick Hungerfords (Third Party) (No 13) (1991) 5 ACSR 212 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gilmour v Pyramid Building Society (In Liq) (1995) 6 BPR 97531 Harvey v Perpetual Nominees Ltd [2009] NSWSC 1379 Nemeth v Reachcord Pty Ltd (1998) 9 BPR 97729 Property Builders Pty Limited v Adelaide Bank Limited [2011] NSWCA 266; (2011) 15 BPR 29,411 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Suncorp-Metway Limited v Nam Property Holdings Pty Limited [2010] NSWSC 1078; (2010) 16 BPR 30,859 Category: Procedural and other rulings Parties: Charub Pty Ltd (Plaintiff) Chris Triandafyllou (First Defendant) Sevasti Triandafyllou (Second Defendant) Haralabos Triandafyllou (Third Defendant) Representation: Counsel: A W Smith (Plaintiff) No appearance (First & Second Defendants) W Soon (Third Defendant)