NAB Ltd v Goldiway Pty Ltd

The matter before the court involved a dispute between National Australia Bank (NAB) Ltd, the first registered mortgagee, and Goldiway Pty Ltd, the third registered mortgagee, concerning vacant possession of a property at Kangaroo Point. The court was asked to determine whether NAB was entitled to such possession over Goldiway. The property in question had been subject to a mortgage with NAB, which was the first registered mortgagee. Goldiway, the third registered mortgagee, had been involved in attempts to sell the property, but these attempts were thwarted by the inability of the second registered mortgagee, a deregistered company, to release its interest. This situation had persisted for over 12 months, with the sole director of Goldiway also serving as the director of the second registered mortgagee.

The legal issues before the court were whether NAB was entitled to a declaration of vacant possession of the property over Goldiway, and if so, whether an order should be made for NAB to recover possession under section 78(2)(c) of the Land Title Act 1994 (Qld). The court had to consider the implications of the chain of mortgagees, particularly the inability of the second registered mortgagee to release its interest and the assurances made by Goldiway's director regarding the sale. The court also needed to address the consequences of the director's dual role in both Goldiway and the second registered mortgagee.

In delivering the decision, the court found that NAB was indeed entitled to vacant possession of the property. The court reasoned that the prolonged assurances made by Goldiway's director about a sale proceeding, coupled with the second registered mortgagee's inability to release its interest, justified NAB's entitlement to possession. The court emphasised that the director's dual role did not prejudice NAB's rights and that NAB's position as the first registered mortgagee entitled it to priority over Goldiway. Accordingly, the court granted the declaration sought by NAB and ordered that NAB recover vacant possession of the property, with Goldiway to pay NAB's costs on an indemnity basis.