IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 02772

MERCEDES MORTGAGE MANAGEMENT PTY LTD (ACN 635 055 542)	Plaintiff	
		
v  		
		
NO RESPONDENT 	First Defendant	
		
CHANG SU YI	Second Defendant	

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JUDICIAL REGISTRAR:	Matthews JR	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 September 2020	
DATE OF JUDGMENT:	9 October 2020	
CASE MAY BE CITED AS:	Mercedes Mortgage Management Pty Ltd v Yi	
MEDIUM NEUTRAL CITATION:	[2020] VSC 657	

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SUMMARY RECOVERY OF LAND – Application under order 53 of the Supreme Court (General Civil Procedure) Rules 2015 – Plaintiff a mortgagee – First defendant occupying property pursuant to a lease with the registered proprietor entered into after the mortgage without mortgagee’s consent – Order 53 ordinarily available in such instances – Factual and legal dispute as to whether plaintiff entitled to possession of the property – Summary procedure not appropriate in this instance.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Meagher	Behan Legal	
			
For the Defendant	Mr J Quah	SLF Legal	

JUDICIAL REGISTRAR:
Introduction
1	The plaintiff, Mercedes Mortgage Management Pty Ltd (‘Mercedes’), has a registered mortgage over land situated in Winged Foot Court, Sunbury, being lot 191 on plan of subdivision 201475V, volume 9676 folio 509 (‘Property’).
2	By way of originating motion filed on 30 June 2020, Mercedes commenced a proceeding pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for an order for possession of the Property.
3	At the time of issuing the proceeding, the defendant was named as ‘the plaintiff does not know the name of any person in occupation to make defendant’.  I shall refer to this as the first defendant.  The first defendant is the current occupant of the Property under a lease granted to them by Mr Chang Su Yi, the registered proprietor of the Property.
4	By orders made on 23 July 2020 on the Court’s own motion, the originating motion was referred to me for hearing and determination pursuant to r 84.03 of the Rules.
5	The proceeding was listed before me for directions on 24 July 2020.  A solicitor, Mr Jason Quah of SLF Lawyers, appeared for Mr Yi.  On that date, I made orders joining Mr Yi to the proceeding as the second defendant; for the filing of any further affidavits relied upon by 14 August; for the filing of affidavits in reply by 21 August; and for the filing of any further outlines of submissions by 28 August.  The proceeding was adjourned to 3 September 2020 for hearing.
6	At the request of Mr Yi, the proceeding was listed for directions on 27 August 2020.  There is no need for me to detail that here, other than to note that prior to that directions hearing Mercedes informed Mr Yi it did not intend to file any further affidavits and that was reiterated at the directions hearing.  No directions were made on that date.
7	In support of its application, Mercedes relies on the following:
(a)	affidavit of Peter James sworn 15 June 2020 (‘James Affidavit’).  Mr James is a director of Mercedes;
(b)	affidavit of Rosie Pellicori filed 31 August 2020 (‘Pellicori Affidavit’).  Ms Pellicori is a solicitor employed by Behan Legal, solicitors for Mercedes;
(c)	outline of submissions dated 23 July 2020 (‘Mercedes’ Outline’); and
(d)	supplementary outline of submissions dated 28 August 2020 (‘Mercedes’ Supplementary Outline’).
8	In opposition to the application, Mr Yi relies on the following:
(a)	affidavit of Mr Quah dated 22 July 2020 (‘First Quah Affidavit’);
(b)	supplementary affidavit of Mr Quah dated 23 July 2020 (‘Second Quah Affidavit’);
(c)	further supplementary affidavit of Mr Quah dated 28 August 2020 (‘Third Quah Affidavit’); and
(d)	outline of submissions dated 28 August 2020 (‘Yi Outline’).
Applicable law governing Order 43 applications
9	Order 53 of the Rules provides for summary proceedings for the recovery of land in certain circumstances.  Rule 53.01 of that order provides for the application of the Order:
(1)	Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.
(2)	This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.
10	The balance of Order 53 sets out the proper procedure for a proceeding under Order 53.
11	The principles applicable to a proceeding under Order 53 were summarised by Associate Justice Derham in Tajon Pty Ltd v Arvanitis.  In that case his Honour said:
The authorities establish the following matters in relation to the operation of O 53:
(a)	it is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;
(b)	it is intended to apply only in clear cases where there is no question to try;
(c)	the existence of a factual dispute does not deny the applicability of O 53 where it is possible to resolve the dispute readily and fairly.
(d)	while an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;
(e)	the jurisdiction should be exercised with great care;
(f)	where an issue does emerge, the judge has discretion to dismiss the proceeding or to determine the issue or cause the issue to be subsequently tried.  This includes giving directions as to the further conduct of the proceeding or ordering the proceeding continue as if begun by writ pursuant to r 4.07 of the Rules; and
(g)	where the Court gives judgment for possession under order 53, it may grant a stay of execution.
Summary of decision
12	For the reasons that follow, I consider that there is a question to be tried in this matter which cannot be resolved ‘readily and fairly’ by application of Order 53.  Further, and having regard to the care with which the jurisdiction under Order 53 should be treated, and the discretion granted me to dismiss the proceeding, determine the issue, or cause the issue to be subsequently tried, I consider that the issues emerging in this matter are not appropriately resolved by application of Order 53.  For the same reasons, I do not consider it appropriate to determine the issue via this summary procedure.  It follows that the proceeding should either be dismissed or be subsequently tried.
13	Given the potential for a full trial of the issues in dispute, I consider it inappropriate to explore in great detail the factual and legal issues as they appeared in the material before me.  Further evidence may be led, and further submissions made to the Court.  What follows is a summary of my reasons, intended to demonstrate that the application of Order 53 is inappropriate in this case, without prejudice to the resolution of the factual and legal issues canvassed by the parties.
Background
14	A very brief summary of relevant events is set out below:
(a)	Mr Yi became the registered owner of the property on 2 June 2005;
(b)	at that time, the Property was subject to a life tenancy to Benjamin Robert John Walsh.  Mr Walsh died on 8 May 2019 and probate was granted on 29 October 2019.  From that time on, the Property was not subject to the life tenancy;
(c)	on 7 June 2005 Mr Yi and Perpetual Trustee Australia Limited (‘Perpetual’) entered into a loan agreement for $188,000 (‘Loan’) pursuant to which Mr Yi provided a mortgage over the Property to Perpetual.  The mortgage was registered on the title to the Property on 30 June 2005 (‘Mortgage’);
(d)	the Loan agreement provided for interest to be paid and for 360 monthly repayments of the Loan commencing on the first business day commencing on the next month after 7 September 2005;
(e)	on 19 November 2012, Mr James and Joanna James (‘Previous Trustees’) in their capacity as trustees of the Mercedes Superannuation Fund (‘Trust’) purchased, inter alia, the Mortgage from Perpetual;
(f)	on 19 April 2013, the transfer of the Mortgage from Perpetual to the Previous Trustees dated 12 February 2013 was registered on the title to the Property;
(g)	on 23 July 2019 the Previous Trustees retired as trustees of the Fund and were substituted by Mercedes as trustee; and
(h)	there were dealings registered on the title in August 2019 after the change in trustee of the Fund.  I will describe these in more detail later in these reasons.
Key issues for consideration
15	The key issue for resolution is whether the Order 53 procedure is available in the circumstances of this case.  It seems to me that this boils down to whether Mercedes has a present entitlement to possession of the Property and if so, whether that present entitlement means that summary recovery of possession via the application of Order 53 is appropriate.
16	It is convenient to consider these matters via three key arguments advanced by Mr Yi to contend that Mercedes does not have a present entitlement to possession of the Property as:
(a)	the requirements of the National Credit Code, which is Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth) (‘NCC’) in respect of default notices have not been met;
(b)	the mortgage securing the loan was discharged; and
(c)	there is a tenant in possession of the Property. 
Issue 1: Have the relevant requirements of the NCC been met for Mercedes to have a present entitlement to possession of the Property?
Mercedes’ evidence regarding payment defaults under the Loan
17	Mr James deposes that Mr Yi did not pay all the interest and money owing pursuant to the Loan.  He says that at June 2012, the balance outstanding was $275,219.41 and the interest rate was 8.34% per annum, which has not changed since that time.  He also says that Mr Yi did not pay the outgoings for the Property, being water and Council rates, and that these have been paid for by Mercedes.
18	Mr James deposes that Mr Yi has not made any payments since the transfer of the Mortgage to Mercedes and he believes that Mr Yi had stopped making repayments before that transfer.  I note here that it was not clear in Mr James’ affidavit whether he meant the transfer from the Previous Trustees to Mercedes, or the transfer from Perpetual. 
19	Mr James deposes that on 7 November 2019, Behan Legal sent a letter to Mr Yi enclosing a notice of default and a notice of demand for payment of the debt outstanding under the Loan as at 6 November 2019, being $542,999.93 (‘Notice of Default and Demand’).  According to Mr James, the amount outstanding under the Loan as at the time of making his affidavit is $609,033.11.  Between 11 and 27 November 2019, Behan Legal and SLF Lawyers corresponded about the Notice of Default and Demand.
20	Mr James deposes that in addition to the Notice of Default and Demand being sent to Mr Yi, it was also sent on the same date by letter addressed to ‘The Occupier’ at the Property.  Notices to vacate the Property were sent on 13 December 2019 by Behan Legal to Mr Yi, the Estate of Mr Walsh, and to The Occupier (‘Vacation Notice’).
21	On 17 December 2019, Behan Legal received a telephone call from the property manager who handled the leasing of the Property for Mr Yi, seeking clarification of the notice sent to The Occupier.  Behan Legal subsequently sent a letter to the property manager requiring compliance with the notice to vacate, following which the property manager sent an email to Behan Legal saying that they had contradictory advice from SLF Lawyers and asked if a court order existed.  
22	On 19 December 2019, SLF Lawyers emailed Behan Legal, stating that Mr Yi objected to the notices to vacate and refused to provide possession of the Property, and that he objected to the notices to vacate being sent to The Occupier or the property manager.
Mr Yi’s evidence regarding payment defaults under the Loan
23	Mr Quah deposes that Mr Yi has not received regular statements of any debt which he may owe in respect of the Property which justify the monthly contractual arrears fees or the six monthly account management fees claimed as owing.
24	Mr Quah refers to a letter dated 7 July 2020 from SLF Lawyers to Behan Legal which he says sets out Mr Yi’s position in respect of Mercedes’ claim in this proceeding.  Much of that letter is more in the nature of submissions and to avoid repetition will be referred to below rather than here, however it is stated in that letter that the James Affidavit and exhibits do not substantiate the interest rate of 8.34% or that the entire amount claimed by Mercedes is due and payable.  That letter also states that Mr Yi never signed any loan or security documentation in favour of Mercedes.   The latter proposition was only partially referred to or developed in submissions at the hearing.
Mr Yi’s submissions
25	Mr Yi submits that Mercedes relies on the Notice of Default and Demand, which while stated to be issued under s 88 of the NCC, is in breach of ss 88 and 93 of the NCC such that Mercedes is not entitled to payment of the entire debt claimed or to take enforcement action in respect of the debt claimed.  This position was also stated in SLF Lawyers’ letter of 7 July 2020 to Behan Legal.
26	Section 88 of the NCC sets out the requirements which must be met before a credit provider can enforce a credit contract or mortgage against a defaulting debtor or mortgagor.  That section relevantly provides as follows:
(1)	A credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless:
(a)	the debtor is in default under the credit contract; and
(b)	the credit provider has given the debtor, and any guarantor, a default notice, complying with this section, allowing the debtor a period of at least 30 days from the date of the notice to remedy the default; and
(c) 	the default has not been remedied within that period; 
…
(2)	A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless:
(a)	the mortgagor is in default under the mortgage; and
(b)	the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and
(c)	the default has not been remedied within that period.
27	Section 88 of the NCC then sets out requirements for the content of the notice of default and the circumstances in which a notice is not required, none of which were relevant in this case.
28	Section 93 of the NCC sets out the requirements which must be met before a credit provider can enforce an acceleration clause in a credit contract or mortgage, and relevantly provides as follows:
(1)	An acceleration clause is to operate only if the debtor or mortgagor is in default under the credit contract or mortgage and:
(a)	the credit provider has given to the debtor and any guarantor, or to the mortgagor, a default notice under section 88; and
(b)	the default notice contains an additional statement of the manner in which the liabilities of the debtor or mortgagor under the contract or mortgage would be affected by the operation of the acceleration clause and also of the amount required to pay out the contract (as accelerated); and
(c)	the default has not been remedied within the period specified in the default notice (unless the credit provider reasonably believes that the default is not capable of being remedied).
(2)	However, a credit provider is not required to give a default notice under section 88 or to wait until the period specified in the default notice has elapsed before bringing an acceleration clause into operation, if:
(a)	the credit provider reasonably believes that it was induced by fraud on the part of the debtor or mortgagor to enter into the contract or mortgage; or
(b)	the credit provider has made reasonable attempts to locate the debtor or mortgagor but without success; or
(c)	the court authorises the credit provider not to do so; or
(d)	the credit provider reasonably believes that the debtor or mortgagor has removed or disposed of mortgaged goods under a mortgage related to the credit contract or the mortgage concerned, or intends to remove or dispose of that urgent action is necessary to protect the goods.
(3)	This section is in addition to any provision of any other law relating to the enforcement of real property mortgages and does not prevent the issue of notices to defaulting mortgagors under other legislation.
29	In this case, Mr Yi submits that the Notice of Default and Demand did not meet these requirements under the NCC as there was no notice setting out the amount of the arrears due under the Loan agreement giving 30 days to pay – rather, the entire accelerated amount was claimed.  
30	Mr Yi submits that, consequently, Mercedes is not able to enforce the Loan or the Mortgage.
Mercedes’ submissions
31	In reply to this submission, Mercedes submitted that Mr Yi challenges the amount owed, but does not deny that he is in default.  Mercedes says that the critical issue is that the Mortgage is in default, and it is this that gives Mercedes the right to possession.
32	Mercedes submits that the Notice of Default and Demand was in the form stipulated under the NCC and does comply with the NCC.  It says that even if there is some defect in the Notice of Default and Demand, the NCC provides for it to be able to be rectified.
33	It says that there is no doubt there has been a breach of the Loan agreement and it has a right to possession.
34	Mercedes also submitted that the timing of the sending of the Notice of Default and Demand is explained by it becoming aware of the death of Mr Walsh such that the life tenancy was terminated and not an impediment to Mercedes enforcing the Mortgage.
Consideration
35	X The default specified in the Notice of Default and Demand is the failure to pay the amount owing under the Loan agreement, which is said to be $542,999.93 as at 6 November 2019.  This is referred to in the notice as the amount due, and Mr Yi is given until 9 December 2019 to remedy the default.  The notice also refers to this same amount as the ‘payout figure’, describing it as the amount required to repay the Loan in full as at the date specified.
36	The Notice of Default and Demand also stated that if the amount due was not paid by the specified date, the total amount due under the Loan would become immediately due and payable and Mercedes could take enforcement action under the Loan and Mortgage.
37	The Loan agreement provides as follows, in the event of a default:
If you are in default, then after giving any notice required by law and waiting the required period, Perpetual may do either or both of the following:
(a)	make the balance and any other amount payable by you under your loan contract immediately due and payable;
(b)	exercise any and all of its rights under your loan contract and any security.
38	Mercedes does not rely on any other default notice.  True it is that the Notice of Default and Demand contains the statement as to acceleration as required by s 93(1)(b) of the NCC, however there is no evidence before me of any prior default notice which would serve to accelerate the Loan so that the total amount was immediately due and payable.  The term of the Loan was for 360 months from 7 September 2005, that is, it does not expire until 7 September 2035.  Absent a default notice as to arrears which is not subsequently met within the 30 day period, arguably the total amount owing under the Loan is not immediately due and payable.   
39	Consequently, the issue of whether Mercedes has a present entitlement, under the Loan agreement and under the NCC, to enforce the Mortgage is not one that can be resolved via the summary procedure under Order 53.
40	For completeness, I note that the parties agreed that Mr Yi owed money and interest under the loan agreement, though the sum of the debt was disputed.  So long as there is an amount owing in respect of which Mercedes is presently entitled to enforce the Mortgage by taking possession of the Property, the amount of the debt is not germane under Order 53, though it may be relevant in a full trial of the matter.
Issue 2: Does Mercedes have a present entitlement to possession of the Property in light of the dealings on the title of the Property in August 2019?
Evidence regarding the mortgage and the dealings on title
41	There was no dispute that the Mortgage, being the mortgage in favour of Perpetual, was registered on the title to the Property.  Nor was there any dispute that the transfer of Mortgage from Perpetual to the Previous Trustees was also registered on title.  
42	There were further dealings on the Title in August 2019 which were the subject of dispute between the parties.  
43	The current and historical title search for the Property relevantly shows the following dealings:
(a)	19/8/19 – transfer of mortgage;
(b)	30/8/19 – discharge of mortgage;
(c)	30/8/19 – registration of mortgage to Mercedes.
44	In respect of these dealings, Mr James deposes as follows:
As a result of the change of trustees, [Mercedes] as the substitute trustee on 19 August 2019 sought to update the new details of the Mortgage on the Property’s title and I am informed by [Behan Legal] and verily believe that instead of recording the details of the substitute trustee, PEXA erroneously created a discharge.
I am informed by [Behan Legal] and verily believe that the correct recording of the details for the substitute trustee of the Mortgage by the Titles’ Office at Land Victoria occurred on 30 August 2019.
45	The instruments in respect of these dealings are not exhibited to the James Affidavit.  They are, however, exhibited to the First Quah Affidavit.  A brief description of these is set out below:
(a)	there is a transfer of mortgage form, from the Previous Trustees to Mercedes, executed on behalf of Mercedes, with signer name Francis John Ruggiero of Behan Legal on 19 August 2019 and lodged on 19 August 2019 at 11:10:01am;
(b)	there is a discharge of mortgage form, with the Previous Trustees named as the mortgagees, executed on behalf of the Previous Trustees with signer name Francis John Ruggiero of Behan Legal on 19 August 2019 and lodged on 19 August 2019 at 11:10:01am; and
(c)	there is a registration of mortgage form, with Mercedes named as the mortgage, executed on behalf of Mercedes with signer name Francis John Ruggiero of Behan Legal on 30 August 2019 and lodged on 30 August 2019 at 3:17:17pm.
46	These forms are all electronic and do not show actual signatures – just the signer name and signer organisation, in typescript.
Mercedes’ submissions
47	As noted above, Mercedes characterised these dealings on the Title as administrative or technical errors, resulting in a temporary deregistration of the Mortgage on 19 August 2019 and re-registration of the same mortgage on 30 August 2019.  It was submitted that ‘PEXA erroneously created a discharge’ of the Mortgage on 19 August 2019, which was rectified on 30 August 2019.  
48	Mercedes submitted that, in the intervening period, the Mortgage remained on foot as a valid but unregistered mortgage.  In support of this submission, it relied on the ‘well established’ proposition that a mortgagee’s rights arise at the time the mortgage is agreed to, not at the time of registration; and in particular on the authorities cited by Derham AsJ in Tajon for the proposition that a mortgagee’s rights are unaffected by a tenant’s rights under a lease which post-dates the mortgage but pre-dates registration of that mortgage.  In this way, Mercedes submitted, its re-registration of the Mortgage on 30 August 2019 was in accordance with s 74(1A) of the Transfer of Land Act 1958 (Vic) (‘TLA’) as a registration of a mortgage held by Mercedes.
Mr Yi’s submissions
49	Mr Yi was critical of Mercedes for not exhibiting the instruments referred to in paragraph 45 above, contending that they show a discharge of the Mortgage and a subsequent registration of it.
50	Mr Yi submitted that the Previous Trustees discharged the Mortgage on 19 August 2019, and that it thereby ceased to have effect.  The second defendant pointed to s 84(1) of the TLA, which provides:
Upon submission of an instrument in an appropriate approved form signed by the mortgagee or annuitant discharging the land or part thereof from the whole or part of the moneys or annuity secured, the Registrar must remove the recording of the mortgage, charge or annuity from the relevant folio of the Register and that land or portion of land ceases to be subject to the mortgage, charge or annuity.
51	Mr Yi submits that where a mortgage is discharged in accordance with s 84(1) of the TLA, it cannot be re-registered under s 74(1A) of the TLA.  In Mr Yi’s submission, this is because s 74(1A)(b)(i) requires that the person seeking registration ‘holds a mortgage’; and the effect of s 84(1) of the TLA is that where an instrument discharging the mortgage is lodged with the Registrar of Titles, the mortgage ceases to exist.  Mr Yi submits that it is irrelevant that the discharge of the Mortgage may have occurred inadvertently, and that s 74(1A) of the TLA cannot permit persons to freely re-register mortgages after they are discharged lest that freedom be abused by mortgagees.  Further, Mr Yi submits that at the time when Mercedes lodged the instrument to register the Mortgage on 30 August 2019, it did not hold a mortgage signed by him, and that therefore the circumstances in which a mortgagee can sign on behalf of the mortgagor pursuant to s 74(1A) of the TLA do not apply here.
Consideration
52	In my view, there is a lack of clarity about the dealings on the title in August 2019 which I am unable to resolve on the present application.  There is no evidence before me upon which I can be satisfied that Mercedes’ characterisation of them is correct – it may well be, but the evidence does not permit me to determine that.
53	This should not be read as me accepting Mr Yi’s submissions about the effect of the discharge of the Mortgage and its re-registration.  
54	Rather, it simply means that I am not satisfied that the factual and legal disputes raised by the parties in relation to the status of the Mortgage may be ‘fairly and readily’ resolved by application of Order 53.  These questions are central to the matter, as they are central to the issue of whether Mercedes has a present entitlement to possession of the Property.  On the evidence before me, the summary proceeding under Order 53 is not appropriate to resolve them.
Issue 3: Does the presence of the first defendant as a tenant mean that Mercedes does not have a present entitlement to possession of the Property?
Application of Order 53 to tenants
55	Notwithstanding the status of the Mortgage, there is a further dispute between the parties in relation to whether Order 53 is appropriate where the mortgagee’s right to possession is sought to be enforced against lessees. 
56	A document purporting to be a lease agreement between Mr Yi as landlord and lessor, and Mr Dennis Moore as tenant and lessee, to commence on 30 September 2020, was exhibited to the Second Quah Affidavit.  After the currency of this lease was challenged by Mercedes, Mr Yi produced a second document purporting to be an earlier lease agreement between him and Mr Moore, commencing 30 September 2019 and 29 September 2020 (‘the Lease’).  Mr Quah deposes that the first document produced was a renewal of the current lease.
Mercedes’ submissions
57	Mercedes pointed to s 87C of the TLA, which provides:
87C	Mortgagee or annuitant consent required for lease, easement or restrictive covenant
The creation, variation or surrender of a lease or the creation or variation of an easement or restrictive covenant, in respect of land subject to a mortgage or charge, is not valid or binding against a mortgagee or annuitant unless the mortgagee or annuitant has consented in writing to (as the case requires)—
(a)	the creation, variation or surrender of the lease; or
(b)	the creation or variation of the easement or restrictive covenant.
58	Mercedes submitted that Order 53 permits a summary proceeding for possession of land against a lessee, at least in circumstances where the lessee entered into occupation without the consent of the mortgagee.  Mercedes acknowledged the terms of Order 53, as outlined by Derham AsJ in Tajon:
The words of r 53.01(1) of the Rules make it plain that the pre-requisites to the application of O 53 are that the person or persons in occupation of the land:
(a)	entered into occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff; or
(b)	are a person or persons who, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff.
Thus, a tenant holding over after the termination of the tenancy is not within either category and the service of a notice on the tenant purporting to determine the holding over does not alter that position.
59	However, Mercedes submitted that Mr Moore entered into the Lease without the consent of the mortgagee.  On this basis, it submitted that Mr Moore ‘entered into occupation without the plaintiff’s licence or consent’ or that of any previous mortgagee, and that possession of the Property may therefore be ordered under Order 53.  To this end, Mercedes cited further comments of Derham AsJ in Tajon that:
[I]n law, a person who remains in occupation of land without the licence or consent of the person immediately entitled to possession is a trespasser as against that person from the time the entitlement arose, once the person has entered onto the land.
Despite the fact that the parties produced no reported decisions where a mortgagee has recovered possession of land from third parties, like the defendants and other occupiers of the Property in this case, in my view there is nothing in the purpose or object of the Rules, or in principle, against the use of the procedure where such third parties have, as against the plaintiff mortgagee, no right title or interest in the land sufficient to resist a claim for possession.
60	Mercedes also relied on statements by the Court of Appeal in Galloway v National Australia Bank Limited, and of J Forrest J in Balanced Securities Limited v Bianco & Ors in further support.  It was said that these cases establish that a tenant in occupation without the consent of a prior mortgagee is not a ‘tenant in possession’ protected by the exception to indefeasibility at s 42(2)(e) of the TLA as against the mortgagee, and instead takes their possession ‘subject to the mortgagee’s rights’.  In Mercedes’ submissions, one of these rights is the right to immediate possession and an order under Order 53 vindicating that right.  On this view, the Lease is said to be irrelevant in respect of the operation of Order 53, which instead turns on the relationship between Mercedes and the occupier who, so far as Mercedes is concerned, is not in occupation with its permission.
Mr Yi’s submissions
61	Mr Yi submitted that there was a valid lease between him and Mr Moore for the occupation of the Property at the relevant time.  He submitted that Order 53 applies only where the property is occupied without the consent of any predecessor in title of the plaintiff.  Accordingly, he says, r 53.01(1) is not satisfied as Mr Yi is the predecessor in title to Mercedes and Mr Moore is in occupation of the Property with Mr Yi’s consent.  Mr Yi also submitted that r 53.01(2) states that Order 53 does not apply where the property is occupied by a mortgagor or successor in title, and that here Mr Moore is the successor in title to Mr Yi.  
62	Mr Yi submitted that Order 53 is directed to the situation where there is a trespasser who is keeping the proprietor of land out.
63	Further, Mr Yi submitted that Order 53 is not intended to apply where a tenant lawfully occupies the property, and may only apply in respect of licensees.  This line of submissions was not fully developed in written submissions, but was supplemented by oral submissions at the hearing by reference to decisions of this Court in Framlingham and the Court of Appeal in Chan v Chan.  In particular, the decision of the Court of Appeal in Chan was relied upon as authority for the point that Order 53 does not grant an immediate right of possession against a tenant with a right to exclusive possession, even where the lease has expired or been terminated.
Consideration
64	The facts in Chan were very different to this case.  In Chan, there was a dispute as to whether the occupier was a tenant at will or a licensee which was not able to be resolved through the summary procedure of Order 53.  If the occupier was a tenant at will, it was held in Chan that Order 53 did not apply.  However, the person seeking possession of the land via Order 53 in that instance was the registered proprietor, not a mortgagee.  Therefore, Chan is authority for the proposition that a registered proprietor cannot use Order 53 to obtain possession of a property from its own tenant (even a tenant at will or a tenant holding over after expiry of the lease).  Chan does not assist Mr Yi, as in this instance it is the mortgagee seeking possession from a person in occupation pursuant to a lease to which it did not consent.
65	I do not accept Mr Yi’s submissions.  Section 87C of the TLA provides that a lease is not valid or binding against a mortgagee unless the mortgagee has consented to it in writing.  That is the position at law.  The authorities relied on by Mr Yi in this regard did not involve any attempt to enforce a leasehold estate created without the consent of a mortgagee or other predecessor in title.  Here, the evidence is clear that Mercedes did not consent to the Lease.  Mr Yi’s submissions as to him being a predecessor in title to Mercedes and a successor in title to Mr Moore do not advance the situation at all.
66	I accept Mercedes’ submissions in this regard.  The authorities regarding the application of Order 53 to instances where a mortgagee who has not consented to a lease seeks possession of the subject land pursuant to that procedure are also clear.  Order 53 can be used in this way.  It is not confined to ‘trespassers’ or ‘squatters’ in the colloquial sense.
Notice and procedural requirements under Residential Tenancies Act 1997 (Vic)
67	As noted above, on 13 December 2019, Mercedes issued the Vacation Notice to the occupier of the Property.
68	The Vacation Notice is a very brief letter, stating that Mercedes had recently served upon the recipients the notice of default and demand for arrears owing under the mortgage; that the arrears had not been paid; and that Mercedes is therefore legally entitled to take immediate possession of the Property.  The Vacation Notice requested that the property be vacated no later than Monday 13 January 2020.
Mr Yi’s submissions
69	Mr Yi objected to the Vacation Notice on the basis that it did not meet the requirements of a notice to vacate under the Residential Tenancies Act 1997 (Vic) (‘RTA’).  He submitted that a residential tenancy agreement must not be terminated except in accordance with Division 1 of Part 6, or Part 7, of the RTA. Section 319, which appears in Division 1 of Part 6 of the RTA, sets out certain requirements for the notice to vacate, including that it be in the prescribed form.  The prescribed form of a notice to vacate is Form 9 in Schedule 1 of the Residential Tenancies Regulations 2019 (Vic).  Mr Yi observed that the Vacation Notice was not in this form and therefore did not meet the requirements of the RTA.
70	In the alternative, Mr Yi submitted that, under Part 7 of the RTA, a mortgagee may seek a possession order by application to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) within 30 days of the termination date specified in a notice to vacate.  Mercedes did not do this.  Mr Yi submitted that this Court has no jurisdiction to make such an order.  He also submitted that, even if the Court had jurisdiction and the Vacation Notice was treated as a valid notice to vacate, then Mercedes’ originating motion filed 30 June 2020 was clearly out of time as the termination date said to be specified in the Vacation Notice was 13 January 2020.
Mercedes’ submissions
71	Mercedes’ submissions with regard to s 87C of the TLA and the authorities discussed at paragraphs 58 to 60 above also relate to the notice and procedural requirements for eviction.  Mercedes submitted that the invalidity of the Lease as against it meant that notice and procedural requirements under the RTA did not apply.  Mercedes again relied on Tajon, in which a notice which did not meet the criteria for a notice to vacate in the RTA was said to be sufficient notice of termination of a licence.  Further, Mercedes relied on Galloway in which Osborn JJA (with whom Santamaria JJA agreed) said:
The solicitor for the applicant submitted that the provisions of the Residential Tenancies Act 1997 overlay the provisions of the Transfer of Land Act 1958.  I do not see that this can be so.  If the lease is not valid against the mortgagee, then there is no lease upon which the notice provisions can operate. 
72	Mercedes also submitted that sections 509 and 510 of the RTA grant this Court jurisdiction to hear and determine applications in respect of a tenancy agreement, with the same powers as the Tribunal would have had if the application had been heard and determined by the Tribunal.  
Consideration
73	I do not accept Mr Yi’s submissions that failure to follow the procedures set out in the RTA mean that Mercedes is not entitled to possession of the Property vis-à-vis the tenant, Mr Moore.
74	I accept Mercedes’ submissions in this regard for the reasons advanced: as the Lease was not consented to by it, the RTA has no work to do in this instance.  As stated by Derham AsJ in Tajon, because the Lease arose after the Mortgage was created, no protection in this regard is conferred on the tenant by the provisions of the RTA.  I also agree with his Honour’s observation that ‘this is not the pace to attempt to work through the interaction between the provisions of the RTA’ and the TLA.  It is simply not necessary here.
Conclusion
75	For completeness, I note that Mr Yi also made a number of submissions, primarily based on the correspondence between the solicitors for the parties and the correspondence between Behan Legal, the occupier and the managing agent, that Mercedes conduct was unsatisfactory.  This conduct was said to be relevant to the Court’s assessment of whether Mercedes had ‘clean hands’ for the purposes of granting it equitable relief.  Given my conclusions in respect of the first and second issues identified, it is not necessary for me to go into this.  However, if it was necessary, I do not consider that it would disentitle Mercedes from relief under Order 53.
76	Therefore, for the reasons set out above, the application for summary recovery of possession of the Property by Mercedes is refused.  The answers in respect of issues 1 and 2 mean that I am not satisfied that Mercedes has established a present entitlement to possession of the Property, as factual and legal questions have been raised in respect of those issues which cannot be resolved summarily.  Accordingly, the Order 53 procedure is not an appropriate procedure in this instance.  Even though the answer in respect of issue 3 is clearly in favour of Mercedes, this does not mean that summary recovery of possession of the Property is appropriate.
77	It follows that the proceeding should either be dismissed or orders made for it to be subsequently tried.  If the latter, the usual course is to make orders that the proceeding continue as if commenced by writ and for pleadings to be filed.
78	The parties did not address which of these courses was preferable.  I will give them an opportunity to do so following receipt of these reasons.
79	The proceeding will be listed for 16 October 2020 to hear from the parties on this issue and for the making of orders.  If the parties consent to the form of orders to be made, they may submit proposed orders to my Chambers prior to that date.