First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd (No 2)

[2024] NSWSC 956

Supreme Court

New South Wales

Medium Neutral Citation:

First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd (No 2) [2024] NSWSC 956

Hearing dates:

5 August 2024

Date of orders:

5 August 2024

Decision date:

05 August 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff against the defendant for $1,573,487.88.

2. The defendant pay the plaintiff’s costs on an indemnity basis as agreed or assessed.

3. The defendant is to pay interest on the judgment at the rate of 15.25% per annum.

Catchwords:

LAND LAW – possession of land – where agreement of parties for defendant to vacate property not complied with – monetary judgment entered in accordance with agreement

Legislation Cited:

Nil

Cases Cited:

First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 956

Texts Cited:

Nil

Category:

Principal judgment

Parties:

First Mortgage Managed Investments Limited (Plaintiff)
Dial-A-Blind (Australia) Pty Ltd (Defendant)

Representation:

Counsel:
A W Smith (Plaintiff)
M Racca (Defendant)

Solicitors:
Results Legal (Plaintiff)
Michael Vaughan & Co Solicitors (Defendant)

File Number(s):

2023/235944

Publication restriction:

Nil

Judgment

1. On 5 March 2024 I gave judgment on an application by the defendant to set aside a default judgment entered on 6 September 2023: First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 956. That default judgment provided for the plaintiff to have possession of land at 1/365 398 West Botany Street, Rockdale and for a judgment in the sum of $2,050,267.53. The judgment of 6 September 2024 set aside the judgment for the monetary amount but not the judgment for possession of the property.

2. Subsequently, the defendant made an application for a relief to AFCA, but that application was ultimately refused by AFCA on the basis that AFCA lacked jurisdiction.

3. Subsequent settlement arrangements between the parties resulted in orders that I made on 24 June 2024. Those arrangements provided for the defendant to provide vacant possession of the property by 31 July 2024. The orders provided that if the defendant failed to do so, the plaintiff was at liberty to enforce the warrant (scil. writ) of possession and to apply without further notice to the Court for judgment for the outstanding debt plus interest and costs on an indemnity basis. The matter was stood over to today to ascertain whether the defendant had given possession of the property as the orders made on 24 June anticipated.

4. The plaintiff now seeks a judgment for a monetary sum and for costs on an indemnity basis because the defendant has not given possession of the land.

5. I have read the affidavits of Kate Molkentin sworn 4 August 2024, detailing correspondence which has passed between the parties. I have also read the affidavit of Michael Henry Boyce sworn 2 August 2024. Mr Boyce is a director of the plaintiff and sets out the amount outstanding under the mortgage, and the basis for the calculation of that amount.

6. I am satisfied in the circumstances that there should be judgment for the monetary sum sought by the plaintiff. On the basis of the orders made on 24 June 2024, the defendant should also pay costs on an indemnity basis.

7. Accordingly, I make the following orders:

1. Judgment for the plaintiff against the defendant in the sum of $1,573,487.88.

2. The defendant is to pay the plaintiff's costs on an indemnity basis as agreed or assessed.

3. The defendant is to pay interest on the judgment at the rate of 15.25% per annum.

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Decision last updated: 06 August 2024