Australian Executor Trustees v Tilley (No.2) [2012] NSWSC 1072

Australian Executor Trustees v Tilley (No.2) [2012] NSWSC 1072

The defendants' failure to pay the second instalment by 15 July 2012 was an event of default under the deed of settlement and the unregistered second mortgage, enlivening AET's contractual and mortgage rights and the consent judgment. The evidence, while insufficient to fix a reserve price, was sufficient to show that an order for sale would not be futile and to justify exercise of the Court's discretion to order sale. The absence of valuation evidence did not justify giving the defendants further time to pay, because they had agreed that time was of the essence and had already had an adequate opportunity to pay. Limenight, as first registered mortgagee, should be joined and given an...

Jurisdiction
Australia
Judgment Date
23 August 2012
Procedural Posture
Property Possession and Sale Proceedings Concerning Mortgage Default / Amended Notice of Motion After Default Under Deed of Settlement and Entry of Monetary Judgment
Outcome
Plaintiff substantially succeeded on the amended notice of motion: possession and sale orders were made, leave to issue a writ of possession and the sale order were stayed for 21 days, Limenight was joined, further evidence and submissions on sale conditions were directed, and defendants were ordered to pay the...
Legal Topics
['possession of Mortgaged Land' 'judicial Sale of Land' 'unregistered Second Mortgage' 'default Under Deed of Settlement' 'reserve Price' 'costs']
['property Law' 'mortgage Law' 'civil Procedure'] ['possession of Mortgaged Land' 'judicial Sale of Land' 'unregistered Second Mortgage' 'default Under Deed of Settlement' 'reserve Price' 'costs']

Case Brief

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Procedural Posture

Property Possession and Sale Proceedings Concerning Mortgage Default / Amended Notice of Motion After Default Under Deed of Settlement and Entry of Monetary Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should be given possession of the Pyrmont property following default under the deed of settlement and unregistered second mortgage.' 'Whether the Court should exercise its discretion to order sale of the Pyrmont property despite the absence of formal valuation evidence.' 'Whether the Court should determine a reserve price and other conditions of sale on the evidence before it.' 'Whether the defendants should be allowed further time to pay the outstanding balance.' 'Whether Limenight Investments Pty Limited should be joined and given an opportunity to make submissions about the sale process.' 'What costs order should be made on the motion.']

Ratio Decidendi

The defendants' failure to pay the second instalment by 15 July 2012 was an event of default under the deed of settlement and the unregistered second mortgage, enlivening AET's contractual and mortgage rights and the consent judgment. The evidence, while insufficient to fix a reserve price, was sufficient to show that an order for sale would not be futile and to justify exercise of the Court's discretion to order sale. The absence of valuation evidence did not justify giving the defendants further time to pay, because they had agreed that time was of the essence and had already had an adequate opportunity to pay. Limenight, as first registered mortgagee, should be joined and given an...

Court Disposition

Plaintiff substantially succeeded on the amended notice of motion: possession and sale orders were made, leave to issue a writ of possession and the sale order were stayed for 21 days, Limenight was joined, further evidence and submissions on sale conditions were directed, and defendants were ordered to pay the...

Orders

  • ['The plaintiff be given possession of the whole of the land comprised in folio identifier 33/SP69950 situated at and known as 33/30-32 Pirrama Road, Pyrmont, New South Wales.' 'The plaintiff be given possession of the whole of the land comprised in folio identifier 190/SP69950 situated at and known as "car space"...