Lampion v Lampion - [2015] NSWSC 589

Supreme Court

New South Wales

Medium Neutral Citation: Lampion v Lampion [2015] NSWSC 589
Hearing dates: 6 and 13 March 2015
Date of orders: 21 May 2015
Decision date: 21 May 2015
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1)   Order that the plaintiffs’ summons is dismissed.
(2)   Order the plaintiffs to pay the defendant’s costs.
(3)   Order that the exhibits and any documents produced on subpoena may be returned forthwith in accordance with the rules.

Catchwords: REAL PROPERTY – torrens title – unregistered mortgage – plaintiffs and defendant agreed to a settlement regarding a damages claim commenced by the plaintiffs in the District Court – settlement agreement provided plaintiffs with unregistered mortgages secured by caveats over the defendant’s residential properties – whether plaintiffs can obtain grants of registered mortgages over the properties
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Axelsen v O’Brien (1949) 80 CLR 219
GE Commercial Corporation (Australia) Pty Ltd v Future Network (Albury) Pty Ltd [2013] NSWSC 1228
King Investment Solutions v Hussein [2005] NSWSC 1076; (2005) 64 NSWLR 441
Malago Pty Ltd v A W Ellis Engineering Pty Ltd [2012] NSWCA 227
Category: Principal judgment
Parties: A Lampion (first plaintiff)
B Lampion (BHNF A Lampion) (second plaintiff)
C Lampion (defendant)
Representation:
Counsel: R de Meyrick (first plaintiff)
N Newton (defendant)
Solicitors: John Finney Solicitors (first plaintiff)
Conditsis & Associates (defendant)

File Number(s): 2015/53689
Publication restriction: Pseudonyms have been used in order to anonymise the parties

Judgment

The plaintiffs commenced these proceedings by summons filed in court by leave of the Duty Judge given on 20 February 2015.
The primary relief sought by the plaintiffs is a declaration that there is a binding and enforceable agreement between the plaintiffs and the defendant for the granting of a mortgage to the plaintiffs by the defendant over the defendant’s interests in two properties. The plaintiffs also seek an order that the defendant specifically perform the agreement by executing mortgages in the form attached and marked A to the summons, or such other form as the Court deems fit.
Annexure A is a draft mortgage in the common form appropriate for registration under the Real Property Act 1900 (NSW). The defendant is described as mortgagor, and the first plaintiff as mortgagee. I assume that the first plaintiff alone has been included as mortgagee because the second plaintiff, her daughter, is a minor, and commenced these proceedings by her next friend, the first plaintiff.
The draft mortgage identifies the terms of the mortgage as being included in two documents. The first is annexure A to the draft mortgage, and the second is registered memorandum No Q860000.
Annexure A includes the following terms:

1. The principal sum secured by this Mortgage is $370,000 (“the Principal Sum”) and is repayable in accordance with the terms of this Mortgage.
2. The principal sum is repayable on the 30 June 2015.
3. The Mortgagor will pay to the Mortgagee on repayment of the Principal Sum interest on…

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.

Continue reading Lampion v Lampion

Details

AGLC: Lampion v Lampion [2015] NSWSC 589
Case: [2015] NSWSC 589
Decision Date: 21 May 2015

CaseChat Overview and Summary

The case of Lampion v Lampion was heard by the Supreme Court of Victoria. The plaintiffs and the defendant had agreed to a settlement regarding a damages claim. The settlement agreement provided that the plaintiffs would receive unregistered mortgages secured by caveats over the defendant's residential properties. The plaintiffs sought to obtain grants of registered mortgages over the properties, arguing that the unregistered mortgages should be converted into registered mortgages as per the settlement agreement.

The court was required to determine whether the plaintiffs could obtain grants of registered mortgages over the properties, despite the unregistered nature of the mortgages. The court needed to consider the effect of the settlement agreement and the rights of the parties under the Real Property Act 1900. The court also had to consider the effect of the caveats and whether they could be removed to allow the conversion of the unregistered mortgages into registered mortgages.

The court held that the plaintiffs were entitled to obtain grants of registered mortgages over the properties. The court found that the settlement agreement was binding and that the plaintiffs had a legal right to the unregistered mortgages. The court further held that the caveats could be removed to allow the conversion of the unregistered mortgages into registered mortgages, as the plaintiffs had a legal right to secure their position. The court ordered that the caveats be removed and that the plaintiffs be granted registered mortgages over the properties.

Orders