Perpetual Trustee Company Limited v Sanna

Perpetual Trustee Company Limited (the plaintiff) brought proceedings against Mr. and Mrs. Sanna (the defendants) seeking to recover possession of a property at 123 Main Street, Sydney, which had been mortgaged to the plaintiff. The dispute arose from the defendants' failure to make repayments under the mortgage agreement. The matter came before Judge Raphael in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff was entitled to an order for possession of the mortgaged property. This required the court to consider the terms of the mortgage agreement, the relevant provisions of the *Real Property Act 1900* (NSW), and the common law principles governing the rights of mortgagees to possession. Specifically, the court had to determine if the plaintiff had established a breach of the mortgage terms that entitled it to exercise its power of sale and, consequently, its right to possession.

Judge Raphael found that the defendants had indeed defaulted on their mortgage repayments, constituting a breach of the mortgage agreement. The court applied the principle that a mortgagee is generally entitled to possession of the mortgaged property upon default by the mortgagor, subject to any statutory or contractual limitations. The court was satisfied that the plaintiff had complied with the necessary procedural requirements under the *Real Property Act 1900* (NSW) before seeking possession. Accordingly, the court concluded that the plaintiff was entitled to an order for possession of the property.