Repossession of Property - Default - Mortgage or Lease

Leases

• Your commercial tenant has failed to pay rent, under a commercial lease, and despite your efforts as landlord you have not been able to collect the rent and you want your premises back by a possession order;
• Your commercial tenant has been locked out of the premises and has re-entered so that you want an injunction to restrain them from entering again, and you want to claim damages;
• You need to send a notice to quit to a commercial tenant with a view to get possession back;
• Your lease has been frustrated and you need possession back;
• The tennant has repudiated the lease and you need possession of the premises;
• You have taken possession of the premises and the previous tenant (or subtenant) now seeks relief against forfeiture.

Mortgages

• The mortgagor has defaulted under the loan and you need to take possession by bringing proceedings in accordance with s 60 of the Real Property Act;
• As mortgagee you need help preparing the appropriate notices, such as under s 57(2)(b), before starting proceedings ;
• The period for compliance with a notice under s 57(2)(b) of the Real Property Act has passed and you wish to exercise your power of sale;
• You are the mortgagee and you face an application to restrain / set aside a sale

So far as an order for possession is concerned, a second mortgagee is entitled to such an order upon default pursuant to s 60 of the Real Property Act 1900: Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142. However, in this case there is evidence that the first mortgagee Bank has obtained an order for possession albeit that it may have been temporarily stayed. In such circumstances, it would seem to me that the position would be as stated by Handley JA in Zanzoul at p 14,145, namely that where the first mortgagee has sought possession the Court would be bound to refuse an order in favour of the second mortgagee. It has been suggested that it would be possible to make an order for possession subject to the rights of the first mortgagee. A case to that effect appears to be Universal Showcards & Display Manufacturing Limited v Brunt & Ors (1984) 128 Sol Jo 581. To a large extent that case was one where the jurisdiction of the county court was in issue. The decision in Universal was followed in Berkshire Capital Funding Limited v Street (1999) 78 P & CR 321. I have difficulty in understanding how an order for possession can be made subject to the rights of a prior encumbrancer who has already obtained an order for possession and as a matter of principle I would have thought what was said by Handley JA was correct and in any event should be followed by me. It appears in fact that a writ of execution has been issued but not yet executed. I accept that it would not be sensible to dismiss the claim for possession in circumstances where there could be some possibility that the writ will not be executed. It seems to me that the sensible arrangement is just to stand over the claim for possession for a period of say two months, and if the writ has not been executed, to allow the plaintiff to apply for the order for possession upon giving appropriate notice to the first mortgagee. This difficulty does not apply to the first loan over the Wildes Meadow property and there an order for possession should be made now. - Driat Pty Ltd v Thomas [2012] NSWSC 683