Liu v Al Maha Pty Ltd

[2022] NSWSC 1427

Supreme Court

New South Wales

Medium Neutral Citation:

Liu v Al Maha Pty Ltd [2022] NSWSC 1427

Hearing dates:

20 October 2022

Date of orders:

20 October 2022

Decision date:

20 October 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff for possession of the whole of the land comprised in folio identifier 61/SP95012 situated at and known as unit 610, 5 Powell Street Homebush.

2. The plaintiff is to serve evidence in chief in relation to the claims in paragraphs 3, 4 and 5 of the statement of claim by 17 November 2022.

3. The defendant is to serve evidence on which it relies in reply by 22 December 2022.    

4. The plaintiff is to serve evidence in reply to the defendant's evidence by 14 January 2023.

5. Stood over for further directions before Davies J at 9:30am on 7 February 2023.

6. The parties have liberty to apply on two days' notice.

Catchwords:

LAND LAW – possession of land – pursuant to a mortgage – where no dispute that specified secured sum is owing – where dispute concerns plaintiff’s right to include other amounts in the secured moneys – judgment for possession given – disputed amounts to be the subject of evidence

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 6.21

Cases Cited:

Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Wei Liu (Plaintiff)
Al Maha Pty Ltd (Defendant)

Representation:

Counsel:
S So (Plaintiff)
A Power (Defendant)

Solicitors:
Revolance Legal (Plaintiff)
C J Boyd Solicitors (Defendant)

File Number(s):

2022/209843

Publication restriction:

Nil

Judgment

1. The plaintiff in the statement of claim filed 18 July 2022 seeks judgment for possession of land being unit 610, 5 Powell Street Homebush, and judgment in the sum of $257,308.32 being the amount of a debt under a mortgage provided by the defendant to the plaintiff on 19 November 2019. The mortgage secures the amount concerned following earlier proceedings where the plaintiff claimed outstanding commissions from the defendant, and was successful in so doing.

2. The mortgage came about as a result of an unsuccessful appeal by the defendant against that judgment to the Court of Appeal. The plaintiff sought security for costs, and the defendant agreed to a mortgage securing $257,308.32.

3. The defendant in the defence filed provides no defence to the plaintiff's claim for possession and does not dispute that the amount of $257,308.32 is owing to the plaintiff. What is disputed are some further amounts of money that the plaintiff seeks in the statement of claim, being pre-judgment interest said to be pursuant to r 6.21 of the Uniform Civil Procedure Rules 2005 (NSW) (this must be an error since that rule is concerned with person who are jointly and severally liable and the need to join them to proceedings), post judgment interest on the judgment debt from the earlier proceedings, and costs which have been the subject of assessment by a costs assessor.

4. In light of the terms of the defence the plaintiff seeks a judgment for possession of the land. The plaintiff also seeks judgment for the amount admitted to be owing.

5. Although there is no dispute, as I have said, that the amount of $257,308.32 is owing to the plaintiff, it does not seem to me appropriate that judgment should be given for that sum because of the extra amounts that the plaintiff claims: Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 at [10] and [52]. It may be arguable that a judgment for this amount would foreclose the plaintiff from being able to pursue the other amounts.

6. I am satisfied that a Notice to Occupier has been served.

7. In those circumstances I consider that judgment for possession should be given but that directions should otherwise be made for the parties to file evidence in relation to the additional amounts sought by the plaintiff.

8. Accordingly, I make the following orders and directions:

1. Judgment for the plaintiff for possession of the whole of the land comprised in folio identifier 61/SP95012 known as unit 610, 5 Powell Street Homebush.

2. The plaintiff is to serve evidence in chief in relation to the claims in paragraphs 3, 4 and 5 of the statement of claim by 17 November 2022.

3. The defendant is to serve evidence on which it relies in reply by 22 December 2022.    

4. The plaintiff is to serve evidence in reply to the defendant's evidence by 14 January 2023.

5. I stand the proceeding over for further directions to 7 February 2023 at 9.30am before me.

6. The parties have liberty to apply on two days' notice.

**********

Decision last updated: 20 October 2022