Makucha v Preslands Finance [2005] NSWSC 41

This was an action in trespass brought by the mortgagee in possession.

The trespass was in respect of chattels or goods that had been left on the land.  A contract for sale of the land required removal of these goods from the land. The owner of the land asserted he had granted right of possession to the plaintiffs. The owner questioned whether the mortgagee in possession had title in the land that would give it standing as against the owner or his assignees of any rights to possession of the goods, to be able to bring an action in trespass against them. Justice Campbell found that the mortgagee in possession had better title than anyone else in claiming trespass and ordered that the goods be removed to allow the contract of sale to be completed.

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