WOODLEY & WOODLEY

This matter concerned an application by the applicants, Woodley & Woodley, for an order for possession of a property located at 123 Main Street, Sydney. The respondents, Mr. and Mrs. Smith, were the registered proprietors of the property. The applicants claimed a right to possession based on a registered mortgage over the property, which they alleged had been defaulted. The dispute therefore centred on whether the applicants were entitled to exercise their power of sale and take possession of the mortgaged property. The application was heard by Burchardt J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the applicants had validly exercised their power of sale under the mortgage. This required the Court to determine whether the respondents had indeed defaulted on the terms of the mortgage agreement, and if so, whether the applicants had complied with all the necessary pre-conditions for exercising the power of sale, including providing proper notice to the respondents. The Court also had to consider any defences raised by the respondents to the possession claim.

Burchardt J found that the evidence presented established a clear default by the respondents under the mortgage agreement. Crucially, the Court was satisfied that the applicants had provided the requisite notice of default and of their intention to exercise the power of sale in accordance with the terms of the mortgage and the relevant provisions of the *Conveyancing Act 1919* (NSW). The respondents' arguments regarding the validity of the notice were found to be without merit.

Consequently, Burchardt J made orders granting the applicants possession of the property at 123 Main Street, Sydney.