Tenants and Leases

Elddin v Hamed [2015] NSWSC 654

A purchaser bought a bankrupt’s home, financed by a bank mortgage and also a loan from the bankrupt. The registered owner allowed the bankrupt to tenant the home for an agreed rental but when asked to leave, the bankrupt refused. The owner had neither possession nor rent for quite some time and was ready, willing …

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ANZ Ltd v Kavia Holdings [2013] NSWSC 1532

The bank granted a mortgage to enable the purchase of a property. Some 19 years later, the bank by letter of offer made available a further $60m facility to the same mortgagor. The bank sought possession and the borrower argued that the all moneys mortgage did not secure the advances made pursuant to the letter …

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Perpetual Nominees v Karamakis [2010] NSWSC 1041

The lender obtained default judgement for possession of the property. However, the tenant sought orders: that he be joined to the proceedings; that the eviction be stayed; and that a caveat he had lodged be prevented from lapsing. The tenant filed an affidavit indicating he had purchased a take-away food business from the borrower and …

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Magar v Arab Bank [2010] NSWSC 553

The mortgagor (“Aldi”) appointed receivers and managers to the mortgage security comprised of a service station property. The lender was mortgagee. The receivers sought declaratory relief to enable them to take possession of the property. Magar sought to restrain them from interfering with his right to possession, claiming an interest by way of a sub-lease …

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ACN 113 137 397 v Winterbottom [2010] NSWSC 421

The loan went into default and a receiver appointed by the lender served an eviction notice on the lessee. The lessee approached the court and sought an injunction. The receiver resisted the injunction raising s 53(4) of the Real Property Act which reads: A lease of land which is subject to a mortgage, charge or …

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Elliot Tuthill Nominees v Boele [2010] NSWSC 103

This case involved a loan to finance the construction of a retirement village. The developer went into liquidation and the lender took possession of the village. The lender sold one of the units and purported to terminate the lease of the resident so that clear title and vacant possession could be given to the purchaser. …

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Perpetual Trustee Company v Agusta [2008] NSWSC 646

In this case Challenger issued a notice to the borrower’s tenant requiring rents be paid to it pursuant to s63 of the Conveyancing Act (this clause allows lenders to collect rents where a mortgage is in default). The borrower sought an injunction suspending the operation of the s63 notice on the basis that it had …

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Antar v Fairchild Development [2008] NSWSC 638

There was a dispute between a landlord and tenant about a lease. The lease had been negotiated in principle but they got hung up on the fine detail. The tenant lodged a caveat which was justified as between the landlord and tenant. The mortgagee whose mortgage was in default appointed a receiver and sought to …

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