King v Brown (No 2)

Case [2021] NSWSC 1060


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: King v Brown (No.2) [2021] NSWSC 1060
Hearing dates: 27 April, 25 May, 20 July 2021
Date of orders: 24 August 2021
Decision date: 24 August 2021
Jurisdiction:Common Law
Before: Schmidt AJ
Decision:

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

CONTRACTS — Mortgage – Whether mortgage valid – Whether mortgage unconscionable — Whether lender unconscionably exploited borrowers

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

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 101(2)

Conveyancing Act 1919 (NSW) s 111A

Evidence Act 1995 (NSW) ss 59,135, 136

Real Property Act 1990 (NSW) s 80A

Uniform Civil Procedure Rules 2005 (NSW) r14.9

Cases Cited:

Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868

Almona Pty Ltd v Parklea Corporation Pty Ltd [2021] NSWCA 171

Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30

Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 213; [2016] NSWCA 328

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36

Bank of Western Australia Ltd v Abdul [2012] VSC 22

Barns v Queensland National Bank Ltd (1906) 3 CLR 925 at 942; [1906] HCA 26

Bitar Pty Ltd v Hebbel Constructions Pty Ltd (2019) 136 ACSR 71; [2019] NSWCA 38

Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14

Commonwealth Bank of Australia v Hadfield [2004] NSWCA 350

Dobbs v National Bank of Australasia Ltd [1935] HCA 49; (1935) 53 CLR 643

Domino Hire Pty Ltd v Pioneer Park Pty Ltd [2003] NSWSC 496

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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.

Orders

Orders of the court

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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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