Capital Finance Aust Ltd v Pella Properties Pty Ltd & Anor [2010] NSWSC 1262

Capital Finance Aust Ltd v Pella Properties Pty Ltd & Anor [2010] NSWSC 1262

Capital Finance was entitled to possession because its registered first mortgage gave it an indefeasible interest under s 42 of the Real Property Act 1900 (NSW), and Mr McHardy failed to prove any oral agreement entitling him to Lot 29 free of the mortgage, failed to prove that Capital Finance or Knightbridge had consented to or were on notice of any such arrangement in circumstances giving rise to fraud or a personal equity, and failed to establish an estoppel or equitable claim for recompense for improvements. The alleged written agreement was not proved to have been signed by Mr Filleul and in any event post-dated Capital Finance's registered mortgages and did not prevail against them.

Jurisdiction
Australia
Judgment Date
16 November 2010
Procedural Posture
Possession Proceedings Concerning Registered First Mortgage and Cross Claims / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the second defendant for possession; writ of possession to issue; cross claims dismissed.
Legal Topics
['possession' 'registered Mortgage' 'indefeasibility' 'personal Equity' 'notice of Unregistered Interest' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'compensation for Improvements']
['property Law' 'torrens Title' 'mortgage Law' 'equity' 'trade Practices'] ['possession' 'registered Mortgage' 'indefeasibility' 'personal Equity' 'notice of Unregistered Interest' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'compensation for Improvements']

Case Brief

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Procedural Posture

Possession Proceedings Concerning Registered First Mortgage and Cross Claims / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether there was an oral agreement between Mr Filleul on behalf of Pella Properties and Mr McHardy in April 2003 or thereabouts relating to Lot 29.' 'Whether that agreement was subsequently reduced to writing on 6 September 2004 and signed by Mr Filleul.' 'Whether Capital Finance was on notice of the alleged oral or written agreements in circumstances making it unconscionable to insist upon indefeasibility arising from its registered first mortgage.' 'Whether Knightbridge was on notice of the alleged oral or written agreements in circumstances making it unconscionable to insist upon its registered mortgage rights.' 'Whether Mr McHardy had a right to compensation or recompense for improvements to Lot 29.']

Ratio Decidendi

Capital Finance was entitled to possession because its registered first mortgage gave it an indefeasible interest under s 42 of the Real Property Act 1900 (NSW), and Mr McHardy failed to prove any oral agreement entitling him to Lot 29 free of the mortgage, failed to prove that Capital Finance or Knightbridge had consented to or were on notice of any such arrangement in circumstances giving rise to fraud or a personal equity, and failed to establish an estoppel or equitable claim for recompense for improvements. The alleged written agreement was not proved to have been signed by Mr Filleul and in any event post-dated Capital Finance's registered mortgages and did not prevail against them.

Court Disposition

Judgment for the plaintiff against the second defendant for possession; writ of possession to issue; cross claims dismissed.

Orders

  • ['There should be judgment for the plaintiff against the second defendant for possession of all of the land together with the improvements erected thereupon and comprised in Folio Identifier 29/SP78699 and known as Unit 2, 24 Clarence Avenue, Dee Why in the State of New South Wales.' 'A Writ of Possession for the...