Liv Style Group Pty Ltd v Eternity Fortune Group Pty Ltd [2021] NSWSC 1398
The Court exercised its discretion to grant orders for judicial sale and vacant possession based on default under the loan agreement and mortgage, the plaintiff's entitlement under the unregistered mortgage as an equitable charge, lack of substantial dispute and non-participation by Mr Qin, interests of other mortgagees and caveators, and provision of reasonable opportunity for repayment and protection for third party occupants.
- Parties
- Plaintiff: Liv Style Group Pty Ltd; First Defendant: Eternity Fortune Group Pty Ltd; Second Defendant: Zihuan Qin; Third Defendant: Tung Shing Tong; Fourth Defendant: Bank of China (Australia) Ltd
- Jurisdiction
- Australia
- Judgment Date
- 28 October 2021
- Procedural Posture
- Application for Judicial Sale and Possession / Final Orders
- Outcome
- Orders for judicial sale and vacant possession granted.
- Legal Topics
- Mortgages, Judicial Sale, Vacant Possession, Equitable Charges
Case Brief
Summary, issues, holding and outcome
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Parties
Liv Style Group Pty Ltd
Plaintiff
Eternity Fortune Group Pty Ltd
First Defendant
Zihuan Qin
Second Defendant
Tung Shing Tong
Third Defendant
Bank of China (Australia) Ltd
Fourth Defendant
Procedural Posture
Application for Judicial Sale and Possession / Final Orders
Legal Issues
- 1 Whether the plaintiff is entitled to orders for judicial sale and vacant possession of the property against the second defendant
- 2 Appropriateness of ancillary orders for possession
- 3 Protection of interests of other mortgagees and caveators
Ratio Decidendi
The Court exercised its discretion to grant orders for judicial sale and vacant possession based on default under the loan agreement and mortgage, the plaintiff's entitlement under the unregistered mortgage as an equitable charge, lack of substantial dispute and non-participation by Mr Qin, interests of other mortgagees and caveators, and provision of reasonable opportunity for repayment and protection for third party occupants.
Court Disposition
Orders for judicial sale and vacant possession granted.
Orders
- The property is to be sold by the plaintiff under court supervision.
- Second defendant to deliver up vacant possession on or before 10 December 2021.
Full Case Text
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