Maviglia Investments Pty Limited (as trustee for the Maviglia Family Trust) v BKSL Investments Pty Ltd (in liq)

In the case of Maviglia Investments Pty Limited (as trustee for the Maviglia Family Trust) v BKSL Investments Pty Ltd (in liq), the parties were involved in a dispute concerning a mortgage over Torrens title land. The mortgagor, BKSL Investments Pty Ltd, had defaulted on its obligations, leading to the mortgagee, Maviglia Investments, taking possession of the property. The mortgagee subsequently sought to exercise its power of sale. However, a new trustee was appointed for the land, which was alleged to be held in trust. This new trustee then sought the mortgagee's agreement to become the registered proprietor and to control the sale of the land. The case raised questions about the rights and obligations of the mortgagee in possession and the new trustee in relation to the land and the power of sale.

The legal issues before the court centred on the rights of the mortgagee in possession and the new trustee over the land, particularly regarding the power of sale. The court had to determine whether the mortgagee's power of sale could be exercised without the consent of the new trustee and whether the new trustee had the right to seek control of the sale process. Additionally, the court needed to consider the implications of the land being held in trust and how this affected the respective rights of the mortgagee and the new trustee.

The court found that the mortgagee's power of sale was not absolute and could be subject to the interests of other parties, including the new trustee. The court held that the new trustee had a legitimate interest in the land, which was held in trust, and therefore had a say in the sale process. The court emphasised the need for the mortgagee to act in good faith and consider the interests of all parties involved. Ultimately, the court determined that the mortgagee could not exercise its power of sale without first obtaining the agreement of the new trustee, who had been appointed to manage the land in trust.

The final orders of the court required the mortgagee to negotiate in good faith with the new trustee to reach an agreement regarding the sale of the land. The court also ordered that the new trustee's rights as the trustee of the land be recognised and that any sale of the property be conducted in a manner that respected those rights. The court's decision underscored the importance of balancing the rights of mortgagees with those of trustees, particularly in cases where land is held in trust.