FOX & CLYDE

This matter concerned an application by Fox for an order for possession of a property located at 123 Main Street, Sydney, against Clyde. Clyde was the registered proprietor of the property. Fox claimed to be entitled to possession under a mortgage granted by Clyde to Fox. The dispute arose because Clyde had failed to make repayments under the mortgage agreement. The application was heard by Riley J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether Fox was entitled to an order for possession of the mortgaged property. This required the Court to determine if the conditions precedent to exercising the power of sale, or the right to possession, under the mortgage had been met. Specifically, the Court had to consider whether Clyde was in default under the mortgage and whether the requisite notices had been served on Clyde in accordance with the terms of the mortgage and relevant legislation.

Riley J found that Clyde was indeed in default under the mortgage agreement due to non-payment of instalments. The Court was satisfied that Fox had complied with the notice requirements stipulated in the mortgage document and the *Conveyancing Act 1919* (NSW). The evidence presented demonstrated that Clyde had been given due notice of the default and an opportunity to remedy it, which he failed to do. Consequently, the Court concluded that Fox was entitled to exercise its rights under the mortgage, including the right to possession.

The Court made orders granting Fox possession of the property at 123 Main Street, Sydney.