WK Marble & Granite v Elia [2014] NSWSC 898

The lender obtained money judgment against the owner of a property and then sued for possession. The owner’s son, occupying the property pursuant to a 20 year lease, sought to be joined on the basis of having purchased the property from the owner, his mother. The money owing by the mother for alleged building works carried out by the son was credited against the purchase price to be paid by the son. The son lodged a number of caveats over the property.

The court held that none of the son’s claims could displace the lender’s primary position to obtain possession of the land as the registered mortgagee. Since the son’s lease was for 20 years it had to be registered for the son to obtain a legal interest in the land. Further, the court found no evidence to show that the lender had notice of the existence of the lease. The court also found that the son’s deed of purchase did not give a legal interest in the land. It simply identified the arrangement that led to the mother owing the son $780,000 and the subsequent arrangement to sell the land to the son. The contract for sale was not completed. It gave only an equitable interest in the land. The only document capable of registration was the mortgage, but it was not registered. Further, none of the documents the son sought to rely upon were stamped. The court found no basis for joinder of the son and awarded indemnity costs against him on the basis that he refused to sign consent orders before trial when he had no basis for joinder.

Click here to read the full judgment

Scroll to Top