Legal Research
Cases
Harriette & Co Pty Ltd v Platine Property Development Pty Ltd

Harriette & Co Pty Ltd v Platine Property Development Pty Ltd

Case [2022] NSWSC 1536 1 November 2022

Interlocutory Orders

Mortgages & Security Interests

Civil Litigation & Procedure

Property Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harriette & Co Pty Ltd v Platine Property Development Pty Ltd [2022] NSWSC 1536
Hearing dates: 28 October and 1 November 2022
Date of orders: 1 November 2022
Decision date: 01 November 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Upon the defendants/cross-plaintiffs’ giving to the Court the usual undertaking as to damages, order that the plaintiff/cross-defendant, by itself, its servants or its agents, is restrained, until 5:00pm 18 November 2022, from:
(a)   enforcing or otherwise exercising any right under clause 4.1 of the Settlement Deed dated 5 August 2022 (Settlement Deed);
(b)   enforcing or otherwise exercising any right under clause 3 of the “Deed of Variation”;
(c)   filing or otherwise taking steps to file the “Consent Judgment” in Schedule 2 of the Settlement Deed (Consent Judgment);
(d)   otherwise seeking or requesting to have the Court make or enter the orders in the Consent Judgment;
(e)   for the avoidance of any doubt, exercising any power of sale with respect to, or taking possession of, the property located at Unit 2, 53 Suttie Road, Bellevue Hill NSW 2023 (folio ID 2/SP93524).
(2)   The Second Defendant through his counsel undertakes to the Court to pay $100,000 into Court by 5:00pm, Friday 4 November 2022.
(3)   All questions of costs are reserved.
(4)   The Court’s orders be entered forthwith.
(5)   The proceedings are listed before the General Registrar in the Common Law Division at 9:00am 3 November 2022 in order to obtain a hearing date and further orders in relation to evidence and related matters.

Catchwords:
CIVIL PROCEEDINGS – Interlocutory applications – Real property
LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW)
Evidence Act1995 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881
AJG Capital Pty Limited v AJG Properties [2010] NSWSC 884
Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Cameron v UBS AG (2000) 2 VR 108; [2000] VSCA 222
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58
Chamberlain Early Learning Centre Pty Limited v Chamberlain Group Pty Limited [2015] NSWSC 751
Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39
Films Rover International Ltd v Cannon Film Sales Ltd (1987) 1 WLR 670
GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare(UK) Ltd (2013) 305 ALR 363; [2013] FCAFC 102
Hi Tech Group Australia Ltd v Riachi [2021] NSWSC 1212
In the matter of Gladstone Pacific Nickel Limited [2011] NSWSC 1235
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harriette & Co Pty Ltd v Platine Property Development Pty Lt...

Details

AGLC: Harriette & Co Pty Ltd v Platine Property Development Pty Ltd [2022] NSWSC 1536
Case: [2022] NSWSC 1536
Decision Date: 01 November 2022

CaseChat Overview and Summary

The case of Harriette & Co Pty Ltd versus Platine Property Development Pty Ltd involved an interlocutory application related to real property. The plaintiff, Harriette & Co, sought to enforce a statutory power of sale under the Real Property Act 1900 (NSW) against the defendant, Platine Property Development, which held a mortgage over a property. The nature of the dispute centred on the validity of the power of sale and the process by which it was exercised. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the statutory power of sale was correctly invoked and if the sale process adhered to the provisions of the Real Property Act. Specifically, the court needed to determine whether the notice of sale was properly issued and if the sale conditions were correctly stated. Additionally, the court had to consider whether there were any procedural flaws that might invalidate the sale.

In examining the case, the court considered the statutory requirements for the exercise of a power of sale under the Real Property Act. It found that while the notice of sale was issued, it contained errors in the description of the property, which did not align with the mortgage documents. The court concluded that these discrepancies were significant and could potentially invalidate the sale. Consequently, the court ruled in favour of the plaintiff, declaring the sale void and ordering a new sale process to be conducted in accordance with the law. The court emphasised the importance of strict compliance with statutory provisions to ensure the validity of such sales.

Orders