Ledinh Sovereign Super Pty Ltd v CT Stone Pty Ltd (No 2)

[2023] NSWSC 1157

Supreme Court

New South Wales

Medium Neutral Citation:

Ledinh Sovereign Super Pty Ltd v CT Stone Pty Ltd (No 2) [2023] NSWSC 1157

Hearing dates:

26 September 2023

Date of orders:

26 September 2023

Decision date:

26 September 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff against each of the first, second and third defendants in the sum of $695,202.47.

2. The amended cross-claim filed 5 September 2023 is otherwise dismissed with no order as to costs.

Catchwords:

LAND LAW – possession of land – calculation of amount owing – no point of principle

Legislation Cited:

Nil

Cases Cited:

Ledinh Sovereign Super Pty Ltd v CT Stone Pty Ltd [2023] NSWSC 1157

Texts Cited:

Nil

Category:

Costs

Parties:

Ledinh Sovereign Super Pty Ltd (Plaintiff/Cross-Defendant)
CT Stone Pty Ltd (First Defendant)
Thuc Tran Huynh (Second Defendant/Cross-Claimant)
Chau Quach (Third Defendant/ Cross-Claimant)
Westpac Banking Corporation (Fourth Defendant)

Representation:

Counsel:
T Buterin (Plaintiff/Cross-Defendant)
D Allen (First, Second & Third Defendants/Cross-Claimants)
Submitting appearance (Fourth Defendant)

Solicitors:
Anne McDonald & Associates (Plaintiff/Cross-Defendant)
Edmond Khoury Solicitors (First, Second & Third Defendants/Cross-Claimants)
Westpac Banking Corporation (Fourth Defendant)

File Number(s):

2022/270143

Publication restriction:

Nil

Judgment

1. I published my judgment in this matter on 15 September 2023: Ledinh Sovereign Super Pty Ltd v CT Stone Pty Ltd [2023] NSWSC 1157. The plaintiff was directed to bring in short minutes to reflect the reasons. Those short minutes involved a calculation of the amount owing under the mortgage having regard to the variation of the contract which I ordered in my judgment.

2. On 21 September 2023, I gave judgment for possession and I granted leave to the plaintiff to issue a writ of possession.

3. The parties were unable to agree on the amount outstanding, chiefly because they did not agree on the calculation of interest. Further, the plaintiff had included in the principal sum an amount of prepaid interest. The result was that the final interest figure included some compounded interest, contrary to the order I had made varying the contract.

4. These proceedings were stood over on two occasions in the hope that agreement could be reached about the amount that was owing under the mortgage. Since agreement has not been reached, it is necessary for the Court to determine what is owing under the mortgage.

5. Although $140,000.00 was originally loaned, $16,800.00 of that represented prepaid interest. $3,200.00 was an amount for fees involved in the loan. It seems to me that the amount that was actually loaned to the defendants as a principal sum was $120,000.00 plus the $3,200.00.

6. Since I struck down the clause that enabled the compounding of interest, it seems to me that the amount upon which interest is to be calculated is $123,200.00. Since there was default, interest is payable at 72% per annum from 16 August 2018 to today, that is, 1,867 days. The total amount of interest for that period is $453,738.70. Two amounts were paid by the defendants, being $11,000.00 on 11 December 2018 and $10,000.00 in July 2019. Both of those amounts must be allocated to pay interest and not to reduce the principal sum.

7. Accordingly, $21,000.00 should be deducted from the calculation of interest for the 1,867 days. That leaves a figure of $432,738.70. When that is added to the principal sum of $123,200.00 and the amount of the costs identified in the certificate given pursuant to cl 24 of the Memorandum, being $139,263.77, the total amount for which judgment should be given is $695,202.47. Accordingly, there should be judgment for the plaintiff against each of the first, second and third defendants in that amount.

8. I held in my judgment that the provisions in the Memorandum which enabled the plaintiff to compound interest were unjust and that the Memorandum should be varied to remove those provisions. That arose by reason of the cross-claim that was brought. That variation takes substantive effect in the amount of the judgment that has been given against the defendants. Accordingly, the amended cross-claim will be otherwise dismissed with no order as to costs.

9. Accordingly, I make the following orders:

1. Judgment for the plaintiff against each of the first, second and third defendants in the sum of $695,202.47.

2. The amended cross-claim filed 5 September 2023 is otherwise dismissed with no order as to costs.

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Decision last updated: 27 September 2023