1. The amended cross claim be dismissed and Mr and Mrs Brown pay Mr King’s costs of the proceedings on an indemnity basis.
2. Final orders in favour of Mr King must be formulated to reflect the calculation of what he is owed, in accordance with the conclusions I have reached.
3. Mr King should file and serve proposed orders within 7 days.
4 The parties have liberty to approach if they need to be heard on the final calculation, which should be exercised within 7 days of service of the proposed orders.
Catchwords:
CONTRACTS – Construction – What currency principal and interest payable under a mortgage must be paid in – Whether claimed costs can be ordered
CORPORATIONS — Receivers and managers — Liability – Whether the accounting group is a legal entity capable of being sued or responsible for the actions of the receiver
MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee -- Power of sale – Whether mortgagee’s power of sale properly exercised where receiver appointed – Whether mortgagee’s duties breached – Damages
MORTGAGES AND SECURITIES — Creditor’s rights — Default — Action to enforce – Appointment of a Receiver – Disputed ownership of assets - Whether there is a basis to order removal of the receiver - Damages
EMPLOYMENT AND INDUSTRIAL LAW — Claim for wages – Whether employment relationship came into existence
[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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AGLC
King v Brown (No 2) [2021] NSWSC 1060
Case
[2021] NSWSC 1060
Decision Date
CaseChat Overview and Summary
The case of King v Brown (No 2) involved a dispute concerning the validity of a mortgage and the associated power of sale exercised by the mortgagee. The matter was heard in the Supreme Court of Queensland. The central issue revolved around whether the mortgage was valid, whether the mortgagee had unconscionably exploited the borrowers, and whether the mortgagee's power of sale was properly exercised. The case also considered whether the mortgagee breached their duties and whether the receiver was liable for damages. Furthermore, the court addressed the question of whether the accounting group was a legal entity capable of being sued or responsible for the actions of the receiver.
The court had to determine whether the mortgage was valid and if the mortgagee had acted unconscionably in exploiting the borrowers. It was necessary to examine whether the mortgagee properly exercised their power of sale and if any duties were breached. The court also needed to decide whether the receiver was appointed correctly and whether there were grounds for ordering the removal of the receiver. Additionally, the court assessed whether the accounting group was a legal entity capable of being sued or responsible for the actions of the receiver. Finally, the court considered whether the mortgagee was entitled to claim costs.
The court held that the mortgage was valid and that the mortgagee did not unconscionably exploit the borrowers. It was determined that the mortgagee's power of sale was properly exercised and that no duties were breached. The court found that there were no grounds to order the removal of the receiver. The accounting group was deemed not to be a legal entity capable of being sued or responsible for the actions of the receiver. The court ruled that the mortgagee was not entitled to claim costs. The final orders included a declaration that the mortgage was valid and enforceable, and that the receiver's appointment was lawful. The court also dismissed the claim for wages.