CIVIL PROCEDURE — judgments and orders — equitable execution — appointment of receiver in respect of real property subject to mortgage — where judgment debtor and mortgagee unable to be located — where steps previously taken by judgment creditor to enforce judgment — where writ of execution previously issued — where unsuccessful attempts made by Sheriff to execute writ — undertaking of judgment creditor to bear costs of receiver — receiver appointed
Quick Take
1Appointment of a receiver to facilitate execution is not ordinarily the first port of call for a judgment creditor. The court is reluctant to make such appointments, and the cost of a receiver relative to the likely benefit is a significant consideration in exercising the discretion.
2Where a writ for levy of property has been issued and the Sheriff has unsuccessfully attempted execution, and further Sheriff action is unlikely to be fruitful, the court may appoint a receiver. On the facts, relevant factors were an encumbering registered mortgage of unknown outstanding amount, a mortgagee who cannot be located, and an inability to assess equity in the property.
3A judgment creditor's undertaking to pay the receiver's remuneration in the first instance can address the court's cost concerns. Here the creditor could seek reimbursement only from surplus funds remaining after sale, once secured creditors and the judgment debt were paid. The Court did not decide whether the Sheriff could apply under s 98 of the Conveyancing Act 1919 (NSW) as a 'person for the time being entitled to redeem the mortgaged land'.
