Mango Media Pty Limited v Smith - [2012] NSWSC 686

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mango Media Pty Limited v Smith [2012] NSWSC 686
Hearing dates: 25 May 2012; 8 June 2012
Decision date: 21 June 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a)Order that the agreement contained in the Mortgage granted 5 September 2011, by the first Defendant to the Plaintiff, be specifically performed by the first Defendant giving to the Plaintiff possession of the land contained within Folio Identifier 46/xxxx being the property known as xxxxx Taylor Street, Narrabri, New South Wales ("the Property") within 28 days of the date hereof.
(b)By way of enforcement of Order (a) above, judgment for the Plaintiff against the first Defendant for possession of the Property.
(c)Order that the first Defendant deliver possession of the Property to the Plaintiff within 28 days of the date of the making of this order.
(d)Order that leave to issue a writ of possession for the Property forthwith be granted to the Plaintiff, but such writ shall not be executed until 30 days after the making of these orders.
(e) Direct that within 14 days of being requested, in writing, to do so, the second Defendant advise the Plaintiff, in writing, of the minimum price figure in accordance with Paragraph 4(a) of the notice of motion filed 18 May 2012.
(f)Order that the Property be sold by the Plaintiff in accordance with Paragraphs 3 and 4 of the notice of motion filed 18 May 2012.
(g)Order that the Plaintiff be appointed to transfer the Property to the purchaser(s) thereof to effectuate the sale.
(h)Declare that from date of the exchange of contracts for sale of the Property until completion of that sale, the Plaintiff will be trustee of the Property for the purchaser or purchasers of the Property.
(i)Order that after the payment of all expenses in respect of the sale, the sale proceeds of the Property be applied so as to pay to the second Defendant the amount secured by the second Defendant's mortgage being mortgage registered number xxx, and the costs of these proceedings as set out below, and any other encumbrances of the Property in order of priority in accordance with their terms pursuant to the Real Property Act then to the Plaintiff in satisfaction of the Plaintiff's Mortgage, interest and costs, with any residue to be paid to the first Defendant.
(j)Note the agreement of the Plaintiff that at all times it will act when selling the Property in accordance with the duties of a mortgagee exercising a power of sale.
(k)Order that the first Defendant pay the Plaintiff's costs of the proceedings.
(l)Order that the first Defendant is to pay the second Defendant's costs of obtaining advice on the Plaintiff's claim and filing a submitting appearance.
(m)Direct that within 7 days of the making of these orders, the Plaintiff provide to the first Defendant's solicitor, in writing, an itemised statement of the current pay-out figure as at that date and an estimate of its costs.

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 Mango Media Pty Limited v Smith

Details

AGLC: Mango Media Pty Limited v Smith [2012] NSWSC 686
Case: [2012] NSWSC 686
Decision Date: 21 June 2012

CaseChat Overview and Summary

Mango Media Pty Limited brought proceedings against Smith in the Supreme Court of New South Wales, seeking orders for the judicial sale of a property as well as other consequential relief. Mango Media, the registered proprietor of the property, claimed that Smith, who held a registered mortgage over the property, had defaulted on the mortgage terms. Mango Media argued that Smith's failure to repay the mortgage entitled them to seek a judicial sale of the property and related relief. The dispute centred on the interpretation of the mortgage agreement, the conditions that triggered the right to sell, and the consequences of Smith's default.

The court needed to determine whether Smith's default justified the sale of the property and if Mango Media was entitled to consequential relief, such as costs and interest. The primary issue was whether the mortgage agreement contained clear and unambiguous terms that allowed for a judicial sale upon default, and if so, whether those terms had been properly triggered. The court also had to consider whether Mango Media was entitled to recover the full amount of the mortgage, interest, and costs from Smith, and if Smith had any available defences or grounds for setting aside the sale.

In delivering the judgment, the court found that the mortgage agreement did indeed contain clear terms allowing for a judicial sale upon default. The court confirmed that Smith's default was unequivocal, as evidenced by the non-payment of the mortgage. The court ruled that Mango Media was entitled to seek a judicial sale of the property and further determined that Mango Media was also entitled to recover the full amount of the mortgage, interest, and costs from Smith. The court rejected Smith's defences, finding them to be without merit. The court ordered that the property be sold by judicial auction and that Mango Media be awarded the proceeds after satisfying the costs of the sale and any outstanding amounts owed under the mortgage.

The court also ordered that Smith pay Mango Media the full amount of the mortgage, interest, and costs as determined by the court. The judgment was final, with no grounds for appeal, and the orders were to be enforced as directed by the court.

Orders