Makucha v Preslands Finance [2005] NSWSC 41

Makucha v Preslands Finance [2005] NSWSC 41

The fifth defendant was a mortgagee in possession with entitlement to possession and actual possession of the land, giving it title to sue in trespass. The plaintiffs' chattels remaining on the land constituted a continuing trespass for which damages would not be an adequate remedy, so leave to file the cross-claim and a mandatory removal order were warranted. The requested declaration authorising future removal, sale or disposal was refused because its legal basis had not been sufficiently explored and abandonment at a future date could not be predicted.

Jurisdiction
Australia
Judgment Date
08 February 2005
Procedural Posture
Notice of Motion in Equity Division Proceedings Seeking Leave to File a Cross Claim and Mandatory Orders for Removal of Chattels From Land / Return Date of Notice of Motion; Ex Tempore Judgment
Outcome
Leave to file a cross-claim granted; plaintiffs ordered to remove specified chattels within 14 days; declaration authorising future removal, sale or disposal refused; liberty to restore granted.
Legal Topics
['trespass to Land by Chattels Remaining on Land' 'mortgagee in Possession' 'mandatory Injunction' 'leave to File Cross Claim' 'removal of Chattels' 'abandonment of Goods']
['torts' 'mortgages' 'equity' 'civil Procedure'] ['trespass to Land by Chattels Remaining on Land' 'mortgagee in Possession' 'mandatory Injunction' 'leave to File Cross Claim' 'removal of Chattels' 'abandonment of Goods']

Case Brief

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Procedural Posture

Notice of Motion in Equity Division Proceedings Seeking Leave to File a Cross Claim and Mandatory Orders for Removal of Chattels From Land / Return Date of Notice of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the fifth defendant should have leave to file a cross-claim.' "Whether the plaintiffs should be ordered to remove chattels from 182 to 196 O'Riordan Street Mascot." 'Whether the fifth defendant, as mortgagee in possession, had title to sue for trespass to land caused by chattels remaining on the land.' 'Whether the Court should declare that the fifth defendant could remove, sell or dispose of the chattels if the plaintiffs failed to remove them.']

Ratio Decidendi

The fifth defendant was a mortgagee in possession with entitlement to possession and actual possession of the land, giving it title to sue in trespass. The plaintiffs' chattels remaining on the land constituted a continuing trespass for which damages would not be an adequate remedy, so leave to file the cross-claim and a mandatory removal order were warranted. The requested declaration authorising future removal, sale or disposal was refused because its legal basis had not been sufficiently explored and abandonment at a future date could not be predicted.

Court Disposition

Leave to file a cross-claim granted; plaintiffs ordered to remove specified chattels within 14 days; declaration authorising future removal, sale or disposal refused; liberty to restore granted.

Orders

  • ['The fifth defendant has leave to file a cross-claim in the form initialled by the judge and placed with the papers.' "Within 14 days of the making of the order, the plaintiffs remove from the premises known as 182 to 196 O'Riordon Street Mascot the chattels described in the list in paragraph 16 of the judgment."...