Nibar Investments Pty Ltd v Manikad Pty Ltd [2014] NSWSC 920

Nibar Investments Pty Ltd v Manikad Pty Ltd [2014] NSWSC 920

Ms Angelou had a sufficient interest to be joined as a cross-claimant because she guaranteed the Defendant's obligations and might be pursued for any shortfall. Although the Defendant and Ms Angelou might have Contracts Review Act and unconscionability arguments affecting monetary liability beyond the principal,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 July 2014
Procedural Posture
Interlocutory Applications in Proceedings Claiming Possession of Land Arising From Default Under a Loan Agreement and Mortgage / Plaintiff's Notice of Motion for Summary Judgment for Possession and Defendant's and Maria Sophie Angelou's Notice of Motion for Joinder as Cross Claimant
Outcome
Summary judgment for possession was granted to the Plaintiff; Maria Sophie Angelou was joined as Second Cross-Claimant; enforcement of the writ was deferred until 8 September 2014.
Legal Topics
['possession of Land' 'default Under Mortgage' 'summary Judgment' 'joinder of Parties' 'contracts Review Act' 'unconscionability' 'guarantee']
['real Property' 'civil Procedure' 'contracts'] ['possession of Land' 'default Under Mortgage' 'summary Judgment' 'joinder of Parties' 'contracts Review Act' 'unconscionability' 'guarantee']

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Procedural Posture

Interlocutory Applications in Proceedings Claiming Possession of Land Arising From Default Under a Loan Agreement and Mortgage / Plaintiff's Notice of Motion for Summary Judgment for Possession and Defendant's and Maria Sophie Angelou's Notice of Motion for Joinder as Cross Claimant

Legal Issues

  1. 1 ['Whether the Plaintiff was entitled to summary judgment for possession of land following default under the loan agreement and mortgage.' 'Whether Maria Sophie Angelou should be joined as a Second Cross-Claimant under Rule 6.24 UCPR.' 'Whether proposed claims under the Contracts Review Act 1980 (NSW) and unconscionability provided a defence to the claim for possession.' 'Whether any defence could diminish the obligation to repay the $900,000 principal advanced to purchase the land.']

Ratio Decidendi

Ms Angelou had a sufficient interest to be joined as a cross-claimant because she guaranteed the Defendant's obligations and might be pursued for any shortfall. Although the Defendant and Ms Angelou might have Contracts Review Act and unconscionability arguments affecting monetary liability beyond the principal, those arguments did not answer the Plaintiff's claim for possession because the $900,000 principal was advanced to permit the Defendant to buy the land, the Defendant retained the land, and that principal sum had to be repaid, which could not occur without sale of the land.

Court Disposition

Summary judgment for possession was granted to the Plaintiff; Maria Sophie Angelou was joined as Second Cross-Claimant; enforcement of the writ was deferred until 8 September 2014.

Orders

  • ['Judgment for the Plaintiff for possession of the whole of the land described in Folio Identifier 17/10707 known as 27 Scarborough Street, Monterey, New South Wales.' 'An order pursuant to part 6 rule 24 that Maria Sophie Angelou be joined as the Second Cross-Claimant in the proceedings.' 'Leave to the Defendant...