ACN 113 137 397 v Winterbottom

ACN 113 137 397 (the plaintiff) applied for interlocutory and final relief against Winterbottom (the defendant), who had been appointed as receivers by the mortgagee of a property leased by the plaintiff. The plaintiff sought relief to prevent the receivers from enforcing a notice to vacate served upon it. The dispute was heard by the Federal Circuit Court of Australia.

The central legal issues were whether the lease between the plaintiff and the lessor was enforceable against the prior registered mortgagee and whether the receivers had the right to exercise all the rights and powers of the mortgagee to possession. The court also had to determine if the mortgagee had consented to the lease, if the mortgagee was estopped from denying consent, and the discretionary factors to be considered in granting or withholding relief.

The court found that the lease was enforceable between the plaintiff and the lessor, but not against the prior registered mortgagee. The receivers were acting as agents of the lessor, not as a bank in possession, and thus were not entitled to exercise all the rights and powers of the mortgagee to possession. The court further held that the mortgagee had not consented to the lease, nor was it estopped from denying consent. In exercising its discretion, the court considered factors such as the likelihood of success, the balance of convenience, and the interests of justice.

The court granted the plaintiff's application for relief, preventing the receivers from enforcing the notice to vacate. The final orders required the receivers to refrain from interfering with the plaintiff's occupation and use of the property until the final determination of the proceeding or further order.