Colombus Property Developments Ltd & 1Ors v Derwent Ventures Ltd [2001] NSWSC 132

Colombus Property Developments Ltd & 1Ors v Derwent Ventures Ltd [2001] NSWSC 132

The Defendant was entitled to possession because the mortgage authorised entry into possession on default, default had undoubtedly occurred and remained substantial and continuing, the conditions for extensions of time had not been satisfied, no immediate repayment of all monies owing was offered, and s57(2)(b) notice was not a pre-condition to taking possession.

Jurisdiction
Australia
Judgment Date
28 February 2001
Procedural Posture
Summons Seeking to Restrain Secured Lender From Interfering With Possession and Occupation of Mortgaged Property / Ex Tempore Judgment
Outcome
Plaintiffs' Summons dismissed. Costs to follow the event.
Legal Topics
['mortgagee Possession' 'default Under Mortgage' 'notice Under Real Property Act 1900 S57' 'injunction to Restrain Mortgagee']
['mortgages' 'equity' 'real Property'] ['mortgagee Possession' 'default Under Mortgage' 'notice Under Real Property Act 1900 S57' 'injunction to Restrain Mortgagee']

Case Brief

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Procedural Posture

Summons Seeking to Restrain Secured Lender From Interfering With Possession and Occupation of Mortgaged Property / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Defendant mortgagee was entitled to take possession of the secured property.' 'Whether notice under s57(2)(b) of the Real Property Act 1900 was a pre-condition to the Defendant taking possession.' 'Whether the Plaintiffs had established a basis to restrain the Defendant from taking possession.']

Ratio Decidendi

The Defendant was entitled to possession because the mortgage authorised entry into possession on default, default had undoubtedly occurred and remained substantial and continuing, the conditions for extensions of time had not been satisfied, no immediate repayment of all monies owing was offered, and s57(2)(b) notice was not a pre-condition to taking possession.

Court Disposition

Plaintiffs' Summons dismissed. Costs to follow the event.

Orders

  • ['The Summons of the Plaintiffs is dismissed.' "The Plaintiffs are to pay the Defendant's costs."]