Naro Investments Pty Limited v Benjamin & Khoury Pty Limited [2020] NSWSC 656

Naro Investments Pty Limited v Benjamin & Khoury Pty Limited [2020] NSWSC 656

The receiver appointed by the first mortgagee (Andask) was entitled to exercise the power of sale despite the deed of appointment not being registered, as the appointment arose under powers in the mortgage granted on default and section 115A(2)(c) of the Conveyancing Act 1919 (NSW) did not apply to require registration in this case. There was no serious question to be tried and the balance of convenience strongly favoured refusal of the injunction; Naro had persistently defaulted, had ample opportunity to achieve a sale, but failed. Andask, having lost confidence in Naro's attempts and now entitled under the mortgage, was entitled to enforce its security and control the sale, with...

Parties
First Plaintiff/applicant: Naro Investments Pty Limited; Defendant/first Respondent: Benjamin & Khoury Pty Limited; Second Respondent: Andask Pty Limited
Jurisdiction
Australia
Judgment Date
21 May 2020
Procedural Posture
Interlocutory Application / Ex Tempore Judgment on Motion for Injunction
Outcome
Application dismissed; costs on indemnity basis to second respondent.
Legal Topics
Mortgagee's Power of Sale, Appointment of Receiver, Injunction, Enforcement of Security, Default Under Mortgage, Registration of Appointment, Costs
Equity Mortgages Property Law Mortgagee's Power of Sale Appointment of Receiver Injunction Enforcement of Security Default Under Mortgage +2 more

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Parties

Naro Investments Pty Limited

First Plaintiff/applicant

Benjamin & Khoury Pty Limited

Defendant/first Respondent

Andask Pty Limited

Second Respondent

Procedural Posture

Interlocutory Application / Ex Tempore Judgment on Motion for Injunction

Legal Issues

  1. 1 Whether the receiver appointed by the first registered mortgagee (Andask) requires registration of the deed of appointment under s 115A(2)(c) Conveyancing Act 1919 (NSW) to exercise powers of sale
  2. 2 Whether the mortgagor (Naro) is entitled to an injunction restraining the mortgagee and receiver from exercising power of sale and from interfering with Naro's attempts to sell the property
  3. 3 Whether the Court should permit Naro's appointed agent to continue marketing and controlling the sale

Ratio Decidendi

The receiver appointed by the first mortgagee (Andask) was entitled to exercise the power of sale despite the deed of appointment not being registered, as the appointment arose under powers in the mortgage granted on default and section 115A(2)(c) of the Conveyancing Act 1919 (NSW) did not apply to require registration in this case. There was no serious question to be tried and the balance of convenience strongly favoured refusal of the injunction; Naro had persistently defaulted, had ample opportunity to achieve a sale, but failed. Andask, having lost confidence in Naro's attempts and now entitled under the mortgage, was entitled to enforce its security and control the sale, with...

Court Disposition

Application dismissed; costs on indemnity basis to second respondent.

Orders

  • Leave granted to file Amended Notice of Motion.
  • Dismiss the plaintiffs' Amended Notice of Motion dated 21 May 2020.