Biseja v NSI Group [2007] NSWSC 283

In this case lender could not register its mortgage because a writ had been lodged against the land by the defendant. The plaintiff is sought an order cancelling the recording of the writ to allow the mortgagee to register its mortgage.

Justice Brereton noted:

The effect of registration of a writ for levy of property on a title under the (NSW) Real Property Act 1900 is two fold. First, it permits the Sheriff to sell the land under the writ and to give an effective transfer pursuant to the sale. Secondly, it has the effect of preventing dealings with the land while the writ remains registered for a period of three months from the date on which the writ is recorded on the title. However, it ceases to have that effect after three months [Real Property Act, s 105A(6)].

The Court ordered the writs cancelled because:

  1. Their lodgement was inconsistent with an agreement between the parties:
  2. The purpose of recording a writ is to permit execution to be levied, and not to obtain a de facto Mareva order over all a judgment debtor’s real property. As execution had been stayed, the recording of the writs was not serving a proper purpose.
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