Bond Global Capital Pty Ltd v Austral Developers Pty Ltd - [2025] NSWSC 754

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bond Global Capital Pty Ltd v Austral Developers Pty Ltd [2025] NSWSC 754
Hearing dates: 11 July 2025
Date of orders: 15 July 2025
Decision date: 15 July 2025
Jurisdiction: Equity - Commercial List
Before: Brereton J
Decision:
Except in relation to matters not in contest, the plaintiff’s application for summary judgment is dismissed with costs

Catchwords:
CIVIL PROCEDURE – summary judgment – whether summary judgment should be ordered in plaintiff’s favour – where plaintiff claims priority over sale proceeds of two properties – where the sale proceeds have been paid into Court – where 11th to 28th defendants claim their interest in the Kelly Street property should prevail – where plaintiff’s equitable claim is based on an unregistered mortgage provided as security under a loan agreement – where 11th to 28th defendants purchased lots in an unregistered plan of subdivision – where contracts were subsequently rescinded and subdivision never occurred – whether 11th to 28th defendants each acquired an equitable interest in the form of a purchaser’s lien – whether 11th to 28th defendants’ rights were mere equities – where allegations of postponing conduct – not an appropriate matter for summary judgment in relation to matters in contest

Legislation Cited:
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AAN MP Pty Ltd as trustee for the AAN MP Unit Trust v Camilleri [2023] NSWSC 737
Elderly Citizens Homes of SA Inc v Balnaves (1998) 72 SASR 210
GPI Leisure Corp Ltd v Yuill (unreported, Supreme Court of New South Wales, Young J, 6 August 1997)
Hewett v Court (1983) 149 CLR 639; [1983] HCA 7
Slan v Edgerly [2008] NSWSC 1316
1128 CG Pty Ltd as trustee for the 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd [2025] NSWSC 563

Texts Cited:
N.A.

Category: Principal judgment
Parties: Bond Global Capital Pty Ltd (first plaintiff)
Mohammed Golam Mostafa Bhuilan (11th defendant)
Mynul Chowdhuri (12th defendant)
Muhammed Muhitur Rahman (13th defendant)
Shammi Rahman (14th defendant)
Sanyia Afraz Abbasi (15th defendant)
Zahid Warraich Mahmood (16th defendant)
Sehr Naushillah (17th defendant)
Omar Farooq Jan (18th defendant)
Ali & Nahar Pty Ltd (ACN 603 249 305) as trustee for the F & N Super Fund (19th defendant)
Sabah Faryal Siddiqi (20th defendant)
Zafar Shabir Memon (21st defendant)
Quratulain Zafar (22nd defendant)
Imran Sajjad Hashmi (23rd defendant)
Parveen Hashmi (24th defendant)
Abu Md Ahan Ullah (25th defendant)
Farhana Sultana (26th defendant)
Syed Shah Habib Alam (27th defendant)
Wendy Anne Alam (28th defendant)
Representation:
Counsel:
P Newton SC (first plaintiff)
J Parrish (11th to 28th defendants)
Solicitors:
ERA Legal (first plaintiff)
Greenwood Lawyers (11th to 28th defendants)

File Number(s): 2024/394511
Publication restriction: N.A.

JUDGMENT

The plaintiff claims priority to the proceeds of sale of two properties (the Kelly Street property and the Werrington County property). By notice of motion filed on 30 June 2025, it seeks summary judgment in the form of declarations as well as orders…

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 754
Decision Date: 15 July 2025

CaseChat Overview and Summary

The case of Bond Global Capital Pty Ltd v Austral Developers Pty Ltd involved a dispute over the priority of claims to the sale proceeds of two properties, held by the Court pursuant to a Mareva injunction. The plaintiff, Bond Global Capital, claimed priority over the proceeds based on an equitable mortgage over one of the properties. Several defendants sought to assert their interest in the Kelly Street property, arguing they each held a purchaser's lien as a result of purchasing lots in an unregistered plan of subdivision that was subsequently rescinded. The defendants claimed that their equitable interests should prevail over the plaintiff's claim, particularly in light of alleged postponing conduct by the plaintiff.

The central legal issue before the court was whether the plaintiff was entitled to summary judgment on its claim for priority over the sale proceeds, and whether the defendants' equitable interests could be considered mere equities, thereby justifying the granting of summary judgment in the plaintiff's favour. The court had to determine whether the defendants' claims and the allegations of postponing conduct constituted contestable matters that precluded the grant of summary judgment. The court also considered whether the defendants' purchaser's liens could be recognised in light of the rescinded subdivision.

In ruling on the application for summary judgment, the court held that the defendants' claims, including the purchaser's liens and allegations of postponing conduct, were contestable and not appropriate for determination by summary judgment. The court found that the defendants had established a sufficient basis for their claims, which included the purchase of lots in the unregistered subdivision and the subsequent rescission of the subdivision. These claims, coupled with the allegations of postponing conduct, created a factual dispute that precluded the grant of summary judgment in the plaintiff's favour. The court concluded that the defendants' rights could not be dismissed as mere equities, and therefore, the plaintiff's application for summary judgment was denied.

The court did not make any final orders in this summary judgment application, as it was focused solely on whether summary judgment was appropriate. The case was to proceed to a full hearing to determine the priority of the claims to the sale proceeds.

Orders