Samuel M Holdings Pty Ltd v The Trust Company (PTAL) Ltd

[2020] NSWSC 248

Supreme Court

New South Wales

Medium Neutral Citation:

Samuel M Holdings Pty Ltd v The Trust Company (PTAL) Ltd [2020] NSWSC 248

Hearing dates:

11 March 2020

Date of orders:

11 March 2020

Decision date:

11 March 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)      The execution of the writ of possession issued on 29 January 2020 in respect of the property located at 15 O’Donnell Street, Port Kembla be stayed until further order.

(2)      The execution of the writ of possession issued on 29 January 2020 in respect of the property located at 36 Horne Street, Port Kembla be stayed until further order.

(3)      I list this matter for further hearing of this application at 9.00am tomorrow morning, Thursday 12 March 2020.

(4)      I direct that the receiver be notified immediately and informed that the matter is listed at 9.00am tomorrow morning, Thursday 12 March 2020.

Catchwords:

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of writ of possession

Category:

Procedural and other rulings

Parties:

Samuel M Holdings Pty Ltd (Applicant/Defendant)
The Trust Company (PTAL) Limited (Respondent/Plaintiff)

Representation:

Counsel:
R Tregenza (Applicant/Defendant)

Solicitors:
Dominic Carbone (Applicant/Defendant)
Summer Lawyers (Respondent/Plaintiff)

File Number(s):

2019/358119

Publication restriction:

Nil

REVISED EX TEMPORE Judgment

1. This matter comes before me at 5.30pm on 11 March 2020 by way of a notice of motion filed instanter. In support of the motion there is an affidavit of Steven Murabito sworn 11 March 2020. The matter comes before the Court on an urgent basis because the sheriff will be executing writs of possession in respect of properties situated at 15 O’Donnell Street, Port Kembla and 36 Horne Street, Port Kembla at 9.30 am tomorrow morning. Both properties are owned by the defendant, Samuel M Holdings Pty Ltd.

2. Mr Tregenza of counsel, instructed by Dominic Carbone, a Sydney law practice, informs the Court that he appears on behalf of the defendant, Samuel M Holdings Pty Ltd. However, he also informs the Court that a receiver has been appointed to Samuel M Holdings Pty Ltd. He is not instructed by the receiver but is instructed by the director.

3. Ms Jin, of Summer Lawyers, appears on behalf of the plaintiff. She was in another Court and appears having found out about the matter only recently.

4. There is an issue as to whether Mr Tregenza can appear on behalf of the defendant having regard to the fact that a receiver has been appointed. That may depend on a number of factors but there is no inference arising from the appointment of the receiver that the directors have ceded control of the defendant.

5. An order is also sought joining the director, Steven Murabito, as a defendant to the proceedings. Again there is an issue as to whether that can happen. These matters can be agitated tomorrow.

6. Mr Tregenza has outlined various issues relating to the events that have occurred in these proceedings which, if accepted, give rise to some concern as to how it was that judgment was entered against the defendant and why it was that a receiver was appointed. This is not taken to be a criticism of any party or representative in the proceedings but he has outlined matters of potential substance.

7. The plaintiff is the mortgagee in a mortgage with the defendant over the properties. The plaintiff says that at some stage the defendant was in default under the mortgages and a receiver was appointed by the plaintiff.

8. The plaintiff says the receiver was validly appointed. Following the appointment of the receiver, the plaintiff filed a statement of claim. The plaintiff then sought judgment. The receiver consented to the judgment. A writ of possession was issued leading to the sheriff apparently intending to attend at the properties tomorrow morning at 9.30 am.

9. Mr Tregenza says that, on his instructions, the defendant was not in default under the mortgage and that the receiver was not validly appointed. He says further that his client was not notified of the issue of the statement of claim and only found out about these proceedings on 5 March 2020, being after judgment was entered.

10. Bearing in mind the lateness of the application and the limited information available other than the affidavit of Mr Murabito, I am satisfied that the writ of possession should be stayed at least until the parties have a better opportunity to ventilate these issues and, in particular, until Ms Jin has had an opportunity to obtain further instructions, if possible, overnight.

11. I thus order that the execution of the writ of possession issued on 29 January 2020 in respect of the property located at 15 O’Donnell Street, Port Kembla be stayed until further order.

12. I secondly order that the execution of the writ of possession issued on 29 January 2020 in respect of the property located at 36 Horne Street, Port Kembla be stayed until further order.

13. I list this matter for further hearing of this application at 9.00am tomorrow morning, Thursday 12 March 2020.

14. I direct that the receiver be notified immediately and informed that the matter is listed at 9.00am tomorrow morning, Thursday 12 March 2020.

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