Robinson v Nishtom Pty Limited - [2009] NSWSC 36

CITATION: ROBINSON v NISHTOM PTY LIMITED & ANOR [2009] NSWSC 36

HEARING DATE(S): Thursday 4 December 2008

JUDGMENT DATE :
13 February 2009

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: On the defendants’ notice of motion, orders made as follows:-
1. Pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW):-
(a) Orders 1, 2 and 3 of the Statement of Claim be dismissed; and
(b) Paragraphs 5, 6, 7, 11, 12, 13, 14 (in regards to “Mortgage, Memorandum of Mortgage”), 15, 16, 17, 24, 25, 26, 28, 29, 31 and 32 of the pleadings and particulars therein, are struck out.
2. Proceedings be removed from the Possession List.
On the plaintiff’s notice of motion, the claim for Order 1 is dismissed.
The proceedings are to be re-listed for directions in relation to the plaintiff’s claim for an order for repayment of the amount of $400,000 together with interest and costs.

CATCHWORDS: LOANS – a loan by way of vendor finance – under special conditions in Contract for Sale vendor occupied property under licence – express terms as to licence fee payable by vendor during term of licence or date of vacant possession, whichever is the later – remained in occupation beyond six month term – stock and car parts and other objects left on site – no vacant possession prior to clean-up of site in 2008 – undated Loan Agreement and undated Mortgage – executed some time after Contract for Sale - MORTGAGE – failed to specify loan secured – undated Loan Agreement did not purport to vary Contract for Sale the terms for repayment of which differed – could not be read together – Mortgage did not secure the monies the subject of the vendor finance loan - VENDOR – PURCHASE – what constitutes vacant possession – plaintiff’s (bankrupt vendor’s trustee in bankruptcy) claim for order for possession dismissed pursuant to Part 13 Rule 13.4(1)(b)

LEGISLATION CITED: Bankruptcy Act 1966
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Austral Standard Cables Pty Limited v Walker Nominees Pty Limited (1992) NSW Conv R 55-619
Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937
Cumberland Consolidated Holdings Limited v Ireland [1946] 1 All ER 284
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Nishtom Pty Limited & Ors v Robinson [2007] FCA 974
Perpetual Trustees Victoria Limited v Tsai [2004] NSWSC 745
PT Ltd v Maradona (1992) 25 NSWLR 643
Small v Tomassetti [2001] NSWSC 1112
Vella v Permanent Mortgages Pty Limited [2008] NSWSC 505
Waterhouse v Waugh [2003] NSWCA 139

PARTIES: Mark Julian ROBINSON v
NISHTOM PTY LIMITED & ANOR

FILE NUMBER(S): SC No 2008/13665

COUNSEL: P: B Skinner
D: S R Donaldson SC/ R D Marshall

SOLICITORS: P: Sally Nash & Co
D: Hicksons

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 13 FEBRUARY 2009

No 13665 of 2008

MARK JULIAN ROBINSON v NISHTOM PTY LIMITED & ORS

JUDGMENT

HIS…

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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Details

Case: [2009] NSWSC 36
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the matter of Robinson v Nishtom Pty Limited, the dispute centred on a loan by way of vendor finance, under special conditions in a Contract for Sale, for a property that was vendor occupied under a licence. The court was tasked with determining the terms of the licence fee payable by the vendor, specifically whether it was due until the later of the term of the licence or the date of vacant possession. The vendor had remained in occupation beyond the six-month term, leaving stock, car parts, and other objects on the site, and no vacant possession was achieved until the site was cleaned up in 2008. The loan agreement and mortgage were undated and executed some time after the Contract for Sale. The court had to consider whether the undated loan agreement varied the Contract for Sale, which had different terms for repayment, and whether the mortgage secured the monies of the vendor finance loan.

The court determined that the loan agreement did not purport to vary the terms of the Contract for Sale, and the two documents could not be read together. The undated loan agreement did not specify the loan it secured, and the mortgage did not secure the monies of the vendor finance loan. The court further examined the issue of what constituted vacant possession under the circumstances. The plaintiff, the bankrupt vendor's trustee in bankruptcy, sought an order for possession, but the court dismissed the claim under Part 13 Rule 13.4(1)(b).

The court's reasoning was that the terms of the licence were clear and the vendor had not achieved vacant possession as required by the contract. The court found that the undated nature of the loan agreement and mortgage did not affect the enforceability of the Contract for Sale or the terms of the licence. The court held that the plaintiff's claim for possession was dismissed, and no order for possession was made. The court's decision clarified the terms of the licence and the requirements for vacant possession in vendor finance arrangements.

Orders