IWC Industries Pty Ltd v Sergienko

Case [2021] NSWCA 292


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: IWC Industries Pty Ltd v Sergienko [2021] NSWCA 292
Hearing dates: 4 August 2021
Date of orders: 1 December 2021
Decision date: 01 December 2021
Before: Bathurst CJ at [1]
Ward JA at [2]
Gleeson JA at [3]
Decision:

(1)   Appeal dismissed.

(2)   Appellants to pay the first respondent’s costs of the appeal.

Catchwords:

EQUITY – equitable interests in real property – priorities – where property purchased by trustee on trust for sole unitholder – competing claims of beneficiary under trust and equitable mortgagee – where beneficiary did not pay any monies towards purchase price of property or “fully paid” units in unit trust – where beneficiary’s solicitor advised trustee was untrustworthy – where trust deed conferred wide powers on trustee, including power to mortgage trust assets for any contractual obligation – where trust deed precluded unitholder from lodging caveat against any trust property and no caveat was lodged – where equitable mortgage granted over property to respondent in breach of trust – whether merits of competing equities unequal – whether beneficiary’s prior interest postponed to subsequent interest of equitable mortgagee

EQUITY – equitable interests in real property – priorities – where unitholder issued “fully paid” units but no monies paid for units in trust or towards purchase of property – whether evidence that trustee borrowed funds for purchase of property – whether beneficiary has liability to trustee for units issued to it – whether beneficiary was a volunteer

Legislation Cited:

Merchant Shipping Act 1894, 57 & 58 Vic, c 60, s 56

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Abigail v Lapin (1934) 51 CLR 58; [1934] AC 491

AG(CQ) Pty Ltd v A & T Promotions Pty Ltd [2011] 1 Qd R 306; [2010] QCA 83

Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd [2017] NSWCA 99; 18 BPR 36,683

Australian Guarantee Corp (NZ) Ltd v CFC Commercial Finance Ltd [1995] 1 NZLR 129

Australian Property & Management Pty Ltd v Devefi Pty Ltd (NSWSC, Young J, 7 April 1997); (1997) 7 BPR [97,640]

Betlehem v Keytown Constructions Pty Ltd (formerly known as Jadestar Investments Pty Ltd) [2007] WASC 38

Black v Garnock (2007) 230 CLR 438; [2007] HCA 31

Bradley v Riches [1876] 9 Ch D 189

Brocklesby v Temperance Permanent Building Society (1895) AC 173

Burgis v Constantine [1908] 2 KB 484

Cash Resources Australia Pty Ltd v BT Securities Ltd [1990] VR 576

Carritt v Real and Personal Advance Company (1889) 42 Ch D 263

Clark v Raymor (Brisbane) Pty Ltd (No 2) [1982] Qd R 790

Coleman v London County & Westminster Bank Ltd [1916] 2 Ch 353

Cory v Eyre (1863) 1 De GJ & S 149; 46 ER 58

CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53

Dixon v Mucklestone (1872) LR 8 Ch App 155

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AGLC
IWC Industries Pty Ltd v Sergienko [2021] NSWCA 292
Case
[2021] NSWCA 292
Decision Date

CaseChat Overview and Summary

The appeal in *IWC Industries Pty Ltd v Sergienko* concerned competing equitable interests in real property. The appellant, IWC Industries Pty Ltd, claimed an equitable interest as the sole unitholder of a trust that had purchased the property. The respondent, Mr. Sergienko, held an equitable mortgage over the same property, granted by the trustee of the trust. The central dispute revolved around the priority of these competing equitable interests.

The primary legal issue before the Court of Appeal was whether the appellant's prior equitable interest as beneficiary under the trust should be postponed to the respondent's subsequent equitable mortgage. This required the court to determine if the merits of the competing equities were unequal, considering factors such as the appellant's lack of contribution to the purchase price, the trustee's broad powers to mortgage trust assets, and the appellant's failure to lodge a caveat despite being advised of the trustee's untrustworthiness. The court also considered whether the appellant, having been issued "fully paid" units without making any payment, could be considered a volunteer.

The Court of Appeal reasoned that while the appellant held a prior equitable interest, its conduct and the circumstances surrounding the creation of the mortgage warranted postponing its interest. The court noted that the appellant had not contributed to the purchase price and had not lodged a caveat, despite being aware of potential issues with the trustee. Furthermore, the trust deed granted the trustee extensive powers, including the ability to mortgage trust assets. The court found that the appellant's failure to take steps to protect its interest, coupled with the trustee's actions in breach of trust but within the apparent scope of its powers, meant that the merits of the respondent's subsequent equitable mortgage were superior. The appellant was effectively treated as a volunteer, and its inaction meant its prior equity was postponed to the respondent's later, bona fide equitable mortgage.

The appeal was dismissed, and the appellants were ordered to pay the first respondent’s costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellants to pay the first respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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