Agnvet Services v Carter - [2009] NSWSC 753

CITATION: Agnvet Services v Carter [2009] NSWSC 753

HEARING DATE(S): 23 July 2009

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 23 July 2009

DECISION: See paragraph [13] of the judgment.

CATCHWORDS: MORTGAGES - specific performance of agreement to give mortgage. - PRACTICE - order that Registrar execute mortgage if defendant does not comply with order to do so.

LEGISLATION CITED: Civil Procedure Act

CATEGORY: Principal judgment

CASES CITED: Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772

PARTIES: AGnVET Services Pty Ltd (Plaintiff)
Rowen John Carter (First Defendant)
Registrar - General, Department of Lands (Second Defendant)

FILE NUMBER(S): SC 2829/09

COUNSEL: J C Hewitt (Plaintiff)

SOLICITORS: O'Halloran Deal Lawyers (Plaintiff)
Patricia Woodin Solicitors (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

23 July 2009 (ex tempore – revised 23 July 2009)

2829/09 AGNVET SERVICES PTY LIMITED v ROWEN JOHN CARTER & 1 ORS

JUDGMENT

1 HIS HONOUR: This is an application for an order that the defendant execute a mortgage in favour of the plaintiff over certain land owned by the defendant, and for ancillary declarations and orders.

2 The source of the alleged obligation to execute a mortgage is a credit application dated 12 February 2004 made between the plaintiff and the defendant and his then wife. The credit application was made to enable the defendant and his wife (who carried on a primary production business in partnership) to obtain goods and services on credit from the plaintiff.

3 The credit agreement was subject to a number of "Terms and Conditions of Trade" including clause 10, which was headed "Charge". By that clause the "Purchaser" (that is, the defendant and his then wife) charged to the plaintiff "all beneficial interest, freehold (freehold and leasehold) in land held now or in the future by the Purchaser". That charge was given, of course, to secure payment of any indebtedness arising to the plaintiff. Further, clause 10 provided that if the plaintiff made demand "the Purchaser...will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required...".

4 The defendant has not appeared. I am satisfied, on the evidence, that it is likely that he is making himself unavailable, and perhaps that he is overseas. The defendant's brother, who holds an enduring power of attorney from the defendant, has said in effect that the defendant is a very proud man who could not face his indebtedness, and would not return to Australia whilst ever he remained indebted to people.

5 I am satisfied that the defendant's brother was notified personally that the matter would be listed for hearing today, and that the plaintiff would be applying for an order that the defendant execute a mortgage over such real property as is presently registered in his name.

6 There has been tendered, as the subject of the orders that the plaintiff seeks, a form of mortgage prepared by the plaintiff's solicitor. The annexure to that form…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agnvet Services v Carter

Details

AGLC: Agnvet Services v Carter [2009] NSWSC 753
Case: [2009] NSWSC 753
Decision Date: 23 July 2009

CaseChat Overview and Summary

The case of Agnvet Services v Carter involved a dispute over the specific performance of an agreement to provide a mortgage. The plaintiff, Agnvet Services, sought to enforce an agreement whereby the defendant, Carter, was to provide a mortgage over certain property as security for a loan. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant had failed to honour the agreement and sought an order for specific performance, as well as a direction that the Registrar execute the mortgage if the defendant did not comply with the order.

The primary legal issue before the court was whether the agreement between the parties was sufficiently certain and enforceable, and if so, whether the court should order specific performance. The court had to consider the nature of the agreement and whether it met the requirements for specific performance, as well as the appropriateness of directing the Registrar to execute the mortgage if the defendant did not comply with the court's order. Additionally, the court needed to assess the procedural fairness of making such an order.

The court found that the agreement between the parties was sufficiently certain and enforceable, meeting the requirements for specific performance. It was noted that the agreement contained all the essential terms necessary for a valid mortgage, including the identification of the property, the amount of the loan, and the interest rate. The court also determined that ordering the Registrar to execute the mortgage if the defendant did not comply with the order was procedurally fair and appropriate, given the circumstances of the case. Consequently, the court ordered the defendant to provide the mortgage as agreed and directed the Registrar to execute the mortgage if the defendant did not comply within a specified timeframe.

Orders