Secure Funding Pty Ltd v Linienko (No 2) [2023] NSWSC 386

Secure Funding Pty Ltd v Linienko (No 2) [2023] NSWSC 386

Default under the mortgage is established and, pursuant to the terms of the loan agreement and mortgage, the plaintiff is entitled to possession of the property.

Parties
Plaintiff: Secure Funding Pty Ltd; First Defendant: Estate of Svetlana Anita Linienko (substituted by NSW Trustee and Guardian); Second Defendant: Dhana Henry Robinson
Jurisdiction
Australia
Judgment Date
18 April 2023
Procedural Posture
Possession Proceedings / Judgment and Orders for Possession
Outcome
Judgment for the plaintiff for possession of the property; proceedings stood over for directions; liberty to apply granted.
Legal Topics
Possession of Land, Mortgagee Rights, Death of Mortgagor, Substitution of Defendant
Land Law Possession of Land Mortgagee Rights Death of Mortgagor Substitution of Defendant

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Parties

Secure Funding Pty Ltd

Plaintiff

Estate of Svetlana Anita Linienko (substituted by NSW Trustee and Guardian)

First Defendant

Dhana Henry Robinson

Second Defendant

Procedural Posture

Possession Proceedings / Judgment and Orders for Possession

Legal Issues

  1. 1 Whether the plaintiff is entitled to possession of the property following mortgagor's default
  2. 2 Effect of death of a mortgagor and substitution of NSW Trustee and Guardian
  3. 3 Whether sale of the property by a co-mortgagor without mortgagee's consent is valid

Ratio Decidendi

Default under the mortgage is established and, pursuant to the terms of the loan agreement and mortgage, the plaintiff is entitled to possession of the property.

Court Disposition

Judgment for the plaintiff for possession of the property; proceedings stood over for directions; liberty to apply granted.

Orders

  • Judgment for the Plaintiff for possession of the whole land described in the Certificate of Title Folio Identifier Lot 178 in Deposited Plan 255548 and known as 8 Judith Anderson Drive, Doonside NSW 2767.
  • Listed for Directions before Davies J at 9:30am on 28 April 2023.