Permanent Mortgages v Fadale [2011] NSWSC 975

An elderly couple leased a retirement village unit and their lease was never registered or consented to by the registered first mortgagee of the complex. The mortgagees sought possession. The couple lodged a caveat and sought to be joined as defendants to the proceedings on the basis of the Retirement Villages Act. The couple contend that the mortgagee cannot evict the couple without an order of the Consumer, Trader and Tenancy Tribunal and it is bound by certain statutory obligations if it takes possession. The mortgagee sought the withdrawal of the caveat pursuant to section 74MA of the Real Property Act. . 

Retirement Villages Act 1999

The Act prohibits an operator seeking possession in the court except as a mortgagee in possession. The court held that meant that a mortgagee can apply to the court for an order for possession. A mortgagee’s rights are unaffected by the Act.

The Act sets out certain obligations for operators, which is defined to mean the manager of the village and includes a person who owns land in the village. A mortgagee seeking to exercise its right of possession is neither and so has no statutory obligations as operator.

Further the mortgagee did not consent to the lease and its rights are unaffected by the lease and so it could not be said to stand in the lessor’s shoes.

Caveat Withdrawal

Section 53(4) of the Real Property Act say that a lease subject to a mortgage is not valid or binding on the mortgagee unless their consent is obtained before it is registered. The court held that the couple have no caveatable interest in the land and ordered removal of the caveat.

Joinder

The court permitted joinder on the basis that the couple are currently in possession of the property but only so far as a right to be heard in relation to whether and when a writ of possession should issue.

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