Makucha v Preslands Finance

The plaintiff, Makucha, brought an action against the defendants, Preslands Finance, in the Supreme Court of Queensland. The plaintiff sought an injunction to require the defendants to remove a car from their property, which they claimed was trespassing. The defendants, who held a mortgage over the property, argued that the car belonged to a third party and that they were not responsible for its presence on the land. The central issue before the court was whether the mortgagee in possession of a property could be held liable for the presence of a chattel belonging to a third party on the property. The court had to determine if the defendants, as mortgagees, could be held responsible for the trespass caused by the car left on the property by a third party.

The court examined the nature of the defendants' interest in the property, as mortgagees in possession, and whether this interest was sufficient to confer the right to bring an action for trespass. The court considered whether the defendants, as the holders of a mortgage over the property, had the requisite proprietary interest to maintain an action for trespass caused by the presence of a chattel on the land. The court noted that the defendants' interest as mortgagees in possession was limited to enforcing the terms of the mortgage and did not extend to the control of the land in the same way as a freeholder or lessee. The court concluded that the defendants, as mortgagees, did not have the necessary proprietary interest to bring an action for trespass caused by the presence of a chattel on the property.

The court found that the defendants did not have the requisite proprietary interest to maintain an action for trespass caused by the presence of the car on the property. The court held that the defendants, as mortgagees in possession, did not have the same rights and responsibilities as a freeholder or lessee in relation to the land. The court determined that the plaintiff's action was properly brought against the third party who was responsible for leaving the car on the property. The court granted the plaintiff an injunction requiring the removal of the car from the property and dismissed the defendants' claim.

The court ordered that the defendants were to remove the car from the plaintiff's property within a specified time frame and to pay the plaintiff's costs of the action. The court clarified that the defendants, as mortgagees, were not liable for the trespass caused by the car, and that the action should be pursued against the third party responsible for leaving the car on the property. The court's decision highlighted the distinction between the rights of mortgagees in possession and those of freeholders or lessees in relation to the control and management of land.