Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic [2014] NSWSC 218

Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic [2014] NSWSC 218

The plaintiffs have no enforceable cause of action against the fifth defendant as mortgagee; there is no basis in fact or equity for the grant of specific performance or judicial sale, and the court’s discretionary jurisdiction is not enlivened. The fifth defendant, as mortgagee, is entitled to enforce its rights, and summary dismissal of the claims (other than for return of deposit) is appropriate.

Parties
First Plaintiff: George Koovousis; Second Plaintiff: Francesca Koovousis; First Defendant: Danny Tony Vrkic, trustee in bankruptcy of the Estate of Guiliano Fransco; Second Defendant: Westpac Banking Corporation Limited; Third Defendant: Berhero Pty Limited; Fourth Defendant: Battleship Productions Pty Limited; Fifth Defendant: Monaco Solicitors Pty Limited
Jurisdiction
Australia
Judgment Date
17 January 2014
Procedural Posture
Interlocutory Application / Summary Disposal/summary Judgment
Outcome
Summary dismissal (claims 1-4 and 6-8 of summons dismissed); declarations as to mortgagee's rights; costs to be paid by plaintiffs
Legal Topics
Mortgages, Specific Performance, Bankruptcy, Summary Disposal, Judicial Sale, Equitable Relief
Real Property Equity Civil Procedure Mortgages Specific Performance Bankruptcy Summary Disposal Judicial Sale +1 more

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Parties

George Koovousis

First Plaintiff

Francesca Koovousis

Second Plaintiff

Danny Tony Vrkic, trustee in bankruptcy of the Estate of Guiliano Fransco

First Defendant

Westpac Banking Corporation Limited

Second Defendant

Berhero Pty Limited

Third Defendant

Battleship Productions Pty Limited

Fourth Defendant

Monaco Solicitors Pty Limited

Fifth Defendant

Procedural Posture

Interlocutory Application / Summary Disposal/summary Judgment

Legal Issues

  1. 1 Whether the plaintiffs are entitled to specific performance of a contract to purchase land from a bankrupt vendor, in the face of registered mortgages in favour of the fifth defendant
  2. 2 Whether the proceedings (other than the claim for return of deposit) should be summarily dismissed against the mortgagee fifth defendant
  3. 3 Whether the Court's discretion to order a judicial sale over the objection of a mortgagee is enlivened on the facts

Ratio Decidendi

The plaintiffs have no enforceable cause of action against the fifth defendant as mortgagee; there is no basis in fact or equity for the grant of specific performance or judicial sale, and the court’s discretionary jurisdiction is not enlivened. The fifth defendant, as mortgagee, is entitled to enforce its rights, and summary dismissal of the claims (other than for return of deposit) is appropriate.

Court Disposition

Summary dismissal (claims 1-4 and 6-8 of summons dismissed); declarations as to mortgagee's rights; costs to be paid by plaintiffs

Orders

  • Declare that such, if any, rights as the plaintiffs may have against the first defendant are subject to the entitlement of the fifth defendant to enforce its rights as mortgagee under registered mortgage AG288789 (the subject of registered transfer AI163135 in favour of the fifth defendant) and registered mortgage...
  • Declare that the fifth defendant is entitled, as mortgagee, to possession of the land contained in folio identifier 100/7510 for the purpose of enforcement of its powers (including a power of sale) as mortgagee.