Olde v Metro Surf Australia Pty Ltd [2012] NSWSC 618

Olde v Metro Surf Australia Pty Ltd [2012] NSWSC 618

Metro Surf Australia Pty Limited had no demonstrated continuing right to occupy the property. Obnova Concrete Pty Limited had no lease and at best held a contractual licence to occupy, which bound the receivers only to the extent that it was terminable on reasonable notice. The notices requiring vacation within four days and then two weeks were not reasonable, but a period of six weeks was sufficient and generous in the circumstances, so an order for possession was made requiring vacant possession by 13 July.

Jurisdiction
Australia
Judgment Date
01 June 2012
Procedural Posture
Application by Summons for Possession of Land by Receivers Appointed by Mortgagee / Principal Judgment After Hearing
Outcome
Order for possession made.
Legal Topics
['torrens Title' 'receivers Appointed by Mortgagee' 'possession of Land' 'lease and Licence Distinction' 'contractual Licence' 'termination of Licence' 'reasonable Notice' 'vacant Possession']
['real Property' 'mortgages'] ['torrens Title' 'receivers Appointed by Mortgagee' 'possession of Land' 'lease and Licence Distinction' 'contractual Licence' 'termination of Licence' 'reasonable Notice' 'vacant Possession']

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Procedural Posture

Application by Summons for Possession of Land by Receivers Appointed by Mortgagee / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Metro Surf Australia Pty Limited had any right to occupy the property.' 'Whether Obnova Concrete Pty Limited had a leasehold interest or only a licence to occupy the property.' 'Whether the receivers, as agents of the mortgagor, were bound by rights arising under agreements between the mortgagor and the defendants.' "Whether notice given to terminate Obnova Concrete Pty Limited's licence was reasonable." 'What period was reasonable for Obnova Concrete Pty Limited to vacate and remove its materials from the property.']

Ratio Decidendi

Metro Surf Australia Pty Limited had no demonstrated continuing right to occupy the property. Obnova Concrete Pty Limited had no lease and at best held a contractual licence to occupy, which bound the receivers only to the extent that it was terminable on reasonable notice. The notices requiring vacation within four days and then two weeks were not reasonable, but a period of six weeks was sufficient and generous in the circumstances, so an order for possession was made requiring vacant possession by 13 July.

Court Disposition

Order for possession made.

Orders

  • ['The defendants give possession of the land comprised in Certificate of Title Folio Identifier 67/608085 to the plaintiffs by 13 July.' 'Liberty to apply as to enforcement of the order.' "The defendant to pay the plaintiffs' costs." 'Exhibits can be returned.']