Bizcap Au Pty Ltd v Vo - [2025] NSWSC 518

Supreme Court

New South Wales

Medium Neutral Citation: Bizcap Au Pty Ltd v Vo [2025] NSWSC 518
Hearing dates: 21 May 2025
Date of orders: 21 May 2025
Decision date: 21 May 2025
Jurisdiction: Equity - Real Property List
Before: McGrath J
Decision:
Order for judicial sale of the property

Catchwords:
LAND LAW – equitable mortgages – security interest over real property granted by guarantor in loan agreement – borrower in default under loan agreement – guarantor in default under guarantee in loan agreement – lender seeks to enforce rights against guarantor as equitable mortgagee of real property
EQUITY – Equitable remedies – order for judicial sale – whether order for judicial sale should be made

Legislation Cited:
Personal Property Securities Act 2009 (Cth), s 12
Uniform Civil Procedure Rules 2005 (NSW), r 6.8

Cases Cited:
King Investment Solutions Pty Ltd v Hussain (2005)64 NSWLR 441; [2005] NSWSC 1076
National Australia Bank Ltd v Clowes [2013] NSWCA 179
Guo v Option Holdings Pty Ltd [2024] NSWSC 1506
Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584
Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194

Category: Principal judgment
Parties: Bizcap AU Pty Ltd (Plaintiff)
Duc Dung Vo (First Defendant)
Commonwealth Bank of Australia (Second Defendant)
Representation: Summer Lawyers (Plaintiff)

File Number(s): 2023/00294653
Publication restriction: Nil

ex tempore JUDGMENT (revised)

INTRODUCTION

These proceedings have been brought by the plaintiff, Bizcap AU Pty Ltd, against the first defendant, Duc Dung Vo, and the second defendant, the Commonwealth Bank of Australia (CBA).
The proceedings were commenced by Bizcap with the filing of the statement of claim on 15 September 2023. The claims as they are now made against Mr Vo and CBA are contained in the further amended statement of claim filed 30 September 2024 (FASOC). Both Mr Vo and CBA have not entered appearances or filed any defences at any stage of the proceedings. Mr Vo and CBA did not appear at the hearing, including after both parties were called outside the court at the commencement of the hearing.
Bizcap now seek orders for the judicial sale of a property comprised in folio identifier X/XXX known as X River Avenue, Carramar NSW 2163 (Carramar property). Mr Vo is the registered proprietor of the Carramar property. CBA is the registered mortgagee of the Carramar property.
For the reasons set out below, I have determined to make orders for the judicial sale of the Carramar property.

RELEVANT FACTS

Sydney CBD Café’s and Mr Vo

Sydney CBD Café’s was registered on 23 October 2018. Mr Vo is the sole director, secretary and shareholder of Sydney CBD Café’s.
The registered office of Sydney CBD Café’s is the Carramar property.
It appears that Sydney CBD Café’s operated a restaurant called Edes Restaurant & Bar in the Sydney Central Business District.

Loan Agreement

On 14 July 2023, Bizcap as lender entered into the Loan Agreement with Sydney CBD Café’s Pty Ltd as borrower and Mr…

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.

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Details

Case: [2025] NSWSC 518
Decision Date: 21 May 2025

CaseChat Overview and Summary

The case of Bizcap Au Pty Ltd v Vo involves a dispute regarding the enforcement of an equitable mortgage over real property. Bizcap Au Pty Ltd is the lender, and Vo is the guarantor who granted a security interest over real property as part of a loan agreement. The borrower defaulted on the loan, and subsequently, Vo defaulted on the guarantee. Bizcap Au sought to enforce its rights against Vo by claiming the property as an equitable mortgagee. Vo contested the lender's claim, arguing against the enforceability of the equitable mortgage and the appropriateness of an order for judicial sale.

The central legal issues the court had to address were whether the guarantor's security interest constituted an equitable mortgage and, if so, whether an order for judicial sale should be made to satisfy the debt. The court had to examine the terms of the loan agreement and guarantee, the nature of the security interest, and the principles of equity relevant to equitable mortgages and judicial sales.

The court found that the security interest granted by Vo was indeed an equitable mortgage. It reasoned that the terms of the loan agreement and guarantee created a security interest over the property that could be enforced by the lender in the event of default. The court also considered the principles of equity, which recognise that a security interest can be an equitable mortgage if it secures a debt or other obligation. Regarding the judicial sale, the court determined that it was appropriate to order a sale to satisfy the debt, given the guarantor's default and the lender's right to enforce the security interest. The court emphasised the necessity of protecting the lender's interests and ensuring that the debt is repaid.

The final orders of the court were to recognise the equitable mortgage over the property and to direct that a judicial sale be conducted to satisfy the debt owed by Vo to Bizcap Au Pty Ltd.

Orders