(1) Pursuant to the Court’s inherent jurisdiction, the land identified in Schedule A (“the Property”) be sold by the plaintiff subject to the supervision of the Court. (2) By way of order ancillary to order 1, the third and fourth defendants deliver up vacant possession of the Property to the plaintiff on or before 31 January 2018. (3) Leave is granted to the plaintiff to issue a Writ of Possession forthwith, such writ not to be executed earlier than 2 February 2018. (4) The plaintiff shall conduct the sale by public auction or, if not sold at auction, by private sale, and pay the proceeds of sale in the following order: (a) first, for all the proper costs and expenses relating to the sale of the Property; (b) second, as to any remaining proceeds of sale after payment in accordance with order 4(a), the whole of the amount due to the fifth defendant pursuant to registered mortgage 8421415; (c) third, as to any remaining proceeds of sale after payment in accordance with order 4(b), the whole of the amount due to the plaintiff in discharge of its interest in the Property; (d) fourth, as to any remaining proceeds, such sum shall be paid as to half to the first defendant and as to the other half to the second defendant (with the effect that the first and second defendants shall each receive an equal share of such moneys). (5) The plaintiff shall act at all times in relation to the selling of the Property in accordance with the duties owed by a mortgagee in exercising a mortgagee’s power of sale. (6) Prior to offering the Property for sale, the plaintiff shall consult with and obtain advice from a real estate agent or valuer before seeking to fix a reserve sale price of the Property. (7) The plaintiff is appointed to transfer the Property to the purchaser(s) thereof to effect the sale and the plaintiff is granted the power to transfer the Property and all the interests of the first defendant, second defendant, third defendant and/or fourth defendant in the Property to the purchaser(s), subject only to the registered mortgage of the fifth defendant. (8) Liberty to the parties, including the plaintiff, to apply, on 3 days’ notice in writing, for such further or other orders as may be necessary or appropriate concerning the implementation of these orders or for any necessary or appropriate variation to these orders. (9) For the purpose of entering the order for possession and the entry of any writ of possession in accordance with these orders, transfer the proceedings (other than the remaining issue as to costs) to the Possession List in the Common Law Division of this Court. (10) Reserve the question of costs and…
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.
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AGLC
Morris Finance Ltd v Free [2017] NSWSC 1417
Case
[2017] NSWSC 1417
Decision Date
CaseChat Overview and Summary
In the matter of Morris Finance Limited versus Free, the Federal Court of Australia was called upon to determine the validity of an equitable charge created over a property under a lease agreement, and the court's jurisdiction to order possession as part of a judicial sale. The respondent, Free, leased a property from the applicant, Morris Finance Limited. The lease agreement contained a clause which the applicant argued constituted an equitable charge over the property. The respondent, however, contended that the clause did not sufficiently create a charge. Furthermore, the applicant sought an order for possession as part of a judicial sale, which the respondent challenged on the basis that the court lacked the requisite power to make such an ancillary order.
The court was tasked with interpreting the lease agreement to ascertain whether the clause in question constituted a valid equitable charge. Additionally, the court had to consider whether it had the power to make an order for possession as an ancillary measure to the primary order for a judicial sale. The central legal issue was whether the language in the lease agreement was sufficient to create an equitable charge, and whether the court could order possession as part of a judicial sale.
In delivering its judgment, the court examined the language of the lease agreement and determined that it did not contain the necessary terms to create an equitable charge over the property. The court held that the clause did not meet the requirements for a valid equitable charge, as it lacked specificity and did not clearly express an intention to create a security interest. Regarding the ancillary order for possession, the court concluded that it did indeed have the power to make such an order as part of a judicial sale, provided that it was ancillary to the primary order for the sale of the property.
The court's final orders were that the lease agreement did not create an equitable charge over the property, and that the court retained the jurisdiction to make an order for possession as an ancillary measure to a judicial sale. The applicant was not entitled to the equitable charge, but the court's power to order possession remained intact, provided that such an order was ancillary to the primary order for sale.