ROBINSON v NISHTOM PTY LIMITED & ANOR [2009] NSWSC 36

ROBINSON v NISHTOM PTY LIMITED & ANOR [2009] NSWSC 36

The vendor finance advance was made only under the Contract for Sale, whose special conditions were complete in themselves. The undated Loan Agreement and Mortgage were not shown to be contemporaneous or operative, their terms differed materially from the Contract for Sale, and the Mortgage did not identify or secure any specific debt or obligation. The plaintiff therefore could not maintain a possession claim based on the Mortgage. Although vacant possession was given after the plaintiff's scrap metal merchant cleared the site, leaving only residual items that did not substantially impede use of the large industrial property, the remaining claim for repayment of $400,000 plus interest...

Jurisdiction
Australia
Judgment Date
13 February 2009
Procedural Posture
Common Law Proceedings Concerning Possession and Repayment of Vendor Finance Alleged to Be Secured by Mortgage / Defendants' Notice of Motion for Summary Dismissal and Strike Out; Plaintiff's Notice of Motion for Summary Judgment
Outcome
Defendants' notice of motion granted as to dismissal and strike out of the mortgage-based possession claim; proceedings removed from the Possession List. Plaintiff's notice of motion dismissed as to the possession relief; repayment claim to be re-listed for directions.
Legal Topics
['vendor Finance' 'vacant Possession' 'registered Mortgage' 'summary Dismissal' 'set Off' 'possession List']
['loans' 'mortgages' 'vendor and Purchaser' 'bankruptcy' 'civil Procedure'] ['vendor Finance' 'vacant Possession' 'registered Mortgage' 'summary Dismissal' 'set Off' 'possession List']

Case Brief

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Procedural Posture

Common Law Proceedings Concerning Possession and Repayment of Vendor Finance Alleged to Be Secured by Mortgage / Defendants' Notice of Motion for Summary Dismissal and Strike Out; Plaintiff's Notice of Motion for Summary Judgment

Legal Issues

  1. 1 ['Whether the agreement for vendor finance was wholly contained within Special Condition 7 of the Contract for Sale.' 'Whether the mortgage granted by the defendants to Mr Kinsella was capable of giving an interest in the land to secure repayment of the vendor finance.' 'Whether the plaintiff, as trustee in bankruptcy, was entitled to call in the vendor finance where the defendants contended that vacant possession had not been given.' 'Whether the undated Loan Agreement, the Contract for Sale and the Mortgage could be read together.' 'Whether vacant possession had been given after clearing of the property.']

Ratio Decidendi

The vendor finance advance was made only under the Contract for Sale, whose special conditions were complete in themselves. The undated Loan Agreement and Mortgage were not shown to be contemporaneous or operative, their terms differed materially from the Contract for Sale, and the Mortgage did not identify or secure any specific debt or obligation. The plaintiff therefore could not maintain a possession claim based on the Mortgage. Although vacant possession was given after the plaintiff's scrap metal merchant cleared the site, leaving only residual items that did not substantially impede use of the large industrial property, the remaining claim for repayment of $400,000 plus interest...

Court Disposition

Defendants' notice of motion granted as to dismissal and strike out of the mortgage-based possession claim; proceedings removed from the Possession List. Plaintiff's notice of motion dismissed as to the possession relief; repayment claim to be re-listed for directions.

Orders

  • ['Pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), Orders 1, 2 and 3 of the Statement of Claim be dismissed.' 'Paragraphs 5, 6, 7, 11, 12, 13, 14 (in regards to "Mortgage, Memorandum of Mortgage"), 15, 16, 17, 24, 25, 26, 28, 29, 31 and 32 of the pleadings and particulars therein are struck...