Balanced Securities Ltd v Owston Nominees No 2 Pty Ltd (Receivers and Managers appointed)(in liquidation)
[2011] NSWSC 1230
•10 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: Balanced Securities Ltd v Owston Nominees No 2 Pty Ltd (Receivers and Managers appointed)(in liquidation) [2011] NSWSC 1230 Hearing dates: 10 October 2011 Decision date: 10 October 2011 Jurisdiction: Equity Division - Commercial List Before: Rein J Decision: Judgment for the plaintiff against the defendants for possession of lands the subject of these proceedings
Catchwords: EQUITY - plaintiff lent funds to the first defendant - the property which is the subject of the proceedings was mortgaged to the plaintiff as security for the debt - whether the first defendant is in default of its obligations under the loan facility agreement and as mortgagor - the plaintiff seeks possession of the property in order to effect a sale of the property as a mortgagee in possession - whether current occupiers of the property were served with requisite notices of these proceedings - whether the plaintiff is entitled to possession Legislation Cited: Bankruptcy Act 1966 (Cth) Category: Principal judgment Parties: Balanced Securities Ltd (plaintiff)
Owston Nominees No 2 Pty Ltd (Receivers and Managers appointed)(in liquidation) (first defendant)
Warren Perry Anderson (second defendant)
Peter Rolf Swain (third defendant)
George Lopez and Evan Verge (fourth defendants)Representation: M B J Lee SC; E Cowpe (plaintiff)
R M O'Brien (third defendant)
Herbert Geer (plaintiff)
Gillis Delaney Lawyers (third defendant)
File Number(s): SC 2011/217401
EX TEMPORE Judgment
The plaintiff in this matter seeks an order for possession of lands known as Fernhill in Penrith, New South Wales, leave for the issue of a writ of possession and ancillary orders.
The plaintiff lent approximately $18.5 million to the first defendant, Owston Nominees No 2 Pty Ltd ( "Owston Nominees" ), and the debt with interest accrued is now $31,365,122.42.
There are four defendants joined to these proceedings. Owston Nominees is the first defendant. Mr Warren Perry Anderson, formerly director of the first defendant, is the second defendant. He was made bankrupt on 21 June 2011 in respect of an act of bankruptcy on 25 November 2010. The fourth named defendant was appointed as his trustee in bankruptcy. Subsequently the fourth named defendant has been replaced by two new trustees in bankruptcy, a Mr George Lopez and Mr Evan Verge. The plaintiff seeks an order for substitution of the two new trustees. Those trustees consent to the substitution and indicate that they submit to the orders sought by the plaintiff. I propose to make that order for substitution.
The third defendant was today represented by a solicitor, Mr R M O'Brien, who indicated that his client consents to the orders sought by the plaintiff in its notice of motion and the summons in so far as they concern the third defendant. The third defendant resides in one of the properties known as 1145 Mulgoa Rd, which forms part of the Fernhill property. The liquidator of the first defendant has indicated in correspondence that he does not seek to defend the proceedings and will abide by orders made by the Court. Mr Anderson's trustee in bankruptcy has taken a similar position. When the matter was called inside and outside of court this morning the only defendant to appear was the third defendant.
The evidence filed on behalf of the plaintiff consisted of several affidavits of Mr Robert Henry Tomlinson, solicitor for the plaintiff, and of Mr Trevor John Wilson, the general manager of the plaintiff. There were also read affidavits of service of Mr Geoffrey Stewart Shaw. I am satisfied, on the basis of the evidence before me that:
(1) the three persons who are in occupation of the property in addition to the third defendant were served with the requisite notices of these proceedings;
(2) that Owston Nominees has been and is in default of its obligations pursuant to the loan facility agreement and as mortgagor; and
(3) that the plaintiff is entitled to possession of the property so that it can effect a sale of the property as a mortgagee in possession.
I should note that I am satisfied that any tenancy agreement which Mr Anderson claimed has been terminated by a decision of the New South Wales Consumer, Trader and Tenancy Tribunal (see Exhibit A) and that in any event that the trustee in bankruptcy has pursuant to s 133 of the Bankruptcy Act 1966 (Cth) disclaimed any lease that might have existed. There is evidence that Mr Anderson has served a notice to creditors of an annulment application indicating an intention to seek annulment of the sequestration order made to which I earlier referred. Nothing further has been served or advised to the plaintiff or its solicitors in that regard.
In his written submissions, Mr M B J Lee SC, who appears with Mr E B Cowpe for the plaintiff, pointed out that even if Mr Anderson a) makes the application for annulment and b) were successful in his application, that will not affect the disclaimer that was made by Mr Anderson's trustee in bankruptcy by virtue of s 154(1)(a) of the Bankruptcy Act .
I am satisfied that the plaintiff has made out its entitlement to the orders that it seeks as against the first, second and fourth defendants, and as I have noted, as against the third defendant the orders can be made by consent. I therefore make orders in accordance with the short minutes of order initialled by me dated with today's date and which will be placed with the papers. These orders are to be taken out forthwith.
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Decision last updated: 18 October 2011
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