Australia and New Zealand Banking Group Ltd v A-Link Technology Pty Ltd

[2019] NSWSC 1049

Supreme Court

New South Wales

Medium Neutral Citation:	Australia and New Zealand Banking Group Ltd v A-Link Technology Pty Ltd [2019] NSWSC 1049
Hearing dates:	2 August 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	Notice of motion dismissed
Catchwords:	MORTGAGES AND SECURITIES – application by occupier to set aside writ of possession – registered mortgage takes priority over registered lease – no basis for application   CIVIL PROCEDURE – service – whether effected – affidavit of service evidence service was effected
Legislation Cited:	Real Property Act 1900 (NSW), s 42
Category:	Principal judgment
Parties:	Mehajer Holdings Pty Ltd (Applicant) Australia and New Zealand Banking Group Ltd (Respondent/Plaintiff)
Representation:	Counsel: D Allen (Applicant) M Collins (Respondent/Plaintiff)   Solicitors: Future Legal (Applicant) Dentons Australia (Respondent/Plaintiff)
File Number(s):	2018/185917

Judgment

1. HIS HONOUR: In this matter, a notice of motion has been filed by Mehajer Holdings Pty Ltd (“the applicant”) in court, together with an affidavit of support sworn by Mahmoud Mehajer on 2 August 2019. Certain paragraphs of the affidavit have not been read, together with some annexures which either are referred to in the affidavit and are not annexed to it, or are related to the paragraphs that are not read.

2. The applicant submits that service in the proceedings was not effected such that they, as the occupier of the premises which are the subject of the dispute, were made aware of the proceedings.

3. Australia and New Zealand Banking Group Ltd (“the respondent/plaintiff”) has handed up an affidavit of service of Stacey Lander sworn on 24 September 2018, in which she deposes that she did effect service by leaving the relevant documents “under the door of the commercial premises and in the letterbox of the residential premises as no person was in attendance”.

4. The property which is the subject of the dispute is a real estate agency in John Street, Lidcombe, which are commercial premises.

5. The applicant has handed up draft orders which seek, in substance, an order that the applicant is entitled to take possession of the subject land and that its possession not be interrupted by the plaintiff until the afternoon of 5 August 2019, which is this coming Monday afternoon. The applicant also seeks that the matter be stood over to the Duty Judge on that day.

6. As an alternative, the applicant seeks from the Bar table an opportunity to reoccupy the premises for a period of up to two weeks so that it can organise its affairs, it being, as I understand it, an estate agency business which stands to be significantly affected by having been evicted with what it says is no prior notice. That submission is accompanied by what is proposed to be an undertaking, which I assume to be an undertaking by the applicant, to leave the property and pay any rent payable for its further occupation of the property directly to the relevant bank.

7. The application and the alternative that has been put from the Bar table is opposed by the respondent/plaintiff. It submits that there is no basis for the writ of possession to be set aside, in particular having regard to what I understand to be an unregistered lease by the occupier, as against the registered mortgage over the land by the respondent. The respondent relies upon s 42 of the Real Property Act 1900 (NSW) in support of that proposition. I accept that submission.

8. For the reasons I have indicated, I have come to the conclusion that it is appropriate for the notice of motion to be dismissed and, accordingly, I make that order.

9. I make the following order:

1. The notice of motion is dismissed.

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Decision last updated: 15 August 2019