28 May 2019
PVG's registered second mortgages predate the alleged lease and there is no evidence PVG or its predecessor consented to the lease or its assignment; under the Land Transfer Act a mortgagee sale vests title in the purchaser free of unenforceable later interests, therefore GP96's caveat is unsustainable and must be removed and the 2011 interim injunction lifted.
29 Feb 2016
The court concluded the plaintiff did not give consent to the lease; the evidence showed at most acquiescence and not a positive act or conduct amounting to consent under ss 105 and 119, therefore the defendant had no arguable defence and summary judgment awarding the declared relief and vacant possession was ordered.
3 Aug 2015
Defendants failed to demonstrate a reasonably arguable case that the mortgagee gave written consent to the lease; mere intention to lease or informing the lender of an intended lease does not amount to consent, particularly where no lease terms were disclosed and consent in the mortgage required prior written agreement. Consequently the bank was entitled to judgment for the debt, interest, costs and an order for possession.
3 Mar 2009
The court found as a matter of inference from the undisputed facts that the mortgagee did not give affirmative consent to the leases; receipt of modest rental payments and requests for surplus income did not constitute consent by conduct under s119, so the leases do not bind the mortgagee and the caveat must be removed upon registration of the mortgagee's transfer pursuant to s105 and s143.
13 Nov 2008
Court held the Occupation Loan Agreements conferred lease/occupation interests; Cashmere, by taking the mortgage with knowledge of ongoing occupation and income, had consented (consent construed liberally and not vitiated by mortgagor's misrepresentation); Cashmere is exercising effective management/control and thus is an operator under the Retirement Villages Act so s22 applies; accordingly Cashmere cannot obtain vacant possession or dispose other than as required by law and its claims fail.