Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd) v Dagher; Dagher v Berhero Pty Ltd

[2014] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd) v Dagher; Dagher v Berhero Pty Ltd [2014] NSWSC 694

Hearing dates:

29 May 2014

Decision date:

29 May 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Orders made in the following terms:

1. Perpetual Limited as Mortgagee in Possession of Lot 12 in Deposited Plan 516014, known as 18 Dennis Street, Greystanes NSW (the Property) enter into a contract for sale of the Property to Claudia Skaff for the sum of $580,000.00 on the basis that completion of that sale takes place within forty two (42) days of the date of the said contract.

2. Perpetual Limited be restrained from otherwise selling the Property including in particular the sale of the Property at auction on 31 May 2014.

3. The First Defendant provide a Withdrawal of Caveat No. AH23673 to the First Plaintiff on settlement of the sale of the Property pursuant to contract for sale referred to in (1) above.

4. The net proceeds of the sale of the Property following payment of all monies owing to Perpetual Limited as First Mortgagee, the selling agent and the solicitors for Perpetual Limited on the sale of the Property, be paid into Court pending determination of Case No. 2013/188319 between the Plaintiffs herein and the Defendants herein.

Catchwords:

REAL PROPERTY - possession of land - proposed sale by mortgagee in possession - caveator claiming interest in the land - desire by mortgagor to sell to purchaser in advance of auction - application to restrain auction by mortgagee - mortgagees duties regarding payment of proceeds of sale

Legislation Cited:

Family Law Act 1975 (Cth)

Cases Cited:

Residential Housing Corporation v Esber [2011] NSWCA 25; (2011) 80 NSWLR 69

Category:

Interlocutory applications

Parties:

Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd)
Marcel Dagher
Berhero Pty Ltd

Representation:

Counsel:
J Watkins (Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd))
B Nolan (Marcel Dagher)
V Wang (Berhero Pty Ltd)
Solicitors:
DibbsBarker (Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd))
Mahony Law (Marcel Dagher)
Dettman Longworth Lawyers (Berhero Pty Ltd)

File Number(s):

2011/355669 & 2013/188319

Judgment

1. Marcel Dagher has sought in two proceedings orders restraining Perpetual Limited from auctioning a property of which it has possession at 18 Dennis Street, Greystanes. The auction is due to take place on Saturday 31 May. Perpetual obtained possession of the property pursuant to a default judgment given on 21 February 2013 and a writ of possession issued on 24 April 2013.

1. There is, at the moment, on the property a caveat by a company Berhero Pty Limited and that company is the defendant in the equity proceedings commenced by Mr Dagher. The caveat, in substance, claims a caveatable interest worth about $1.8 million.

1. Mr Dagher seeks to restrain the auction because he wishes to sell the property to his wife, Claudia Skaff, from whom he is separated, pursuant to a binding financial agreement dated 7 May 2014 under section 90C of the Family Law Act 1975 (Cth). There had been an earlier version of this agreement dated 29 November 2012.

1. Mr Dagher entered into a contract to sell the property to his wife on 23 September 2013 for a purchase price of $560,000. There is some evidence that that was an appropriate figure by virtue of a valuation obtained in the second half of 2013. Perpetual had previously opposed the orders sought and had opposed the arrangement sought by Mr Dagher because of the perception it has of its duties as a mortgagee in possession selling the property.

1. The arrangement was also opposed by the caveator. The orders sought provided for the caveator to remove its caveat and for Perpetual to pay the balance of the funds from the sale after deduction of its entitlements into Court pending a determination of the caveat proceedings. An alternative was proposed by Mr Dagher and Ms Skaff to allow the caveator to lodge a fresh caveat on the property after sale to Ms Skaff. Since more was being borrowed by Ms Skaff than is presently owed to Perpetual that was not considered beneficial by the caveator.

1. The parties have now settled the proceedings by an agreement that the property should be sold to Ms Skaff but for a purchase price of $580,000. That increased figure derives from a recent valuation of the property in about February of this year.

1. Both Perpetual and the caveator no longer oppose the orders sought by Mr Dagher but neither do they consent.

1. Perpetual's concerns were entirely appropriate because of duties that it has as a mortgagee in possession: see Residential Housing Corporationv Esber [2011] NSWCA 25; (2011) 80 NSWLR 69.

1. In the circumstances of the recent valuation I consider that Perpetual is acting entirely in accordance with its duties as a mortgagee selling in possession in not continuing to oppose the relief that is sought. The position of the caveator is protected by the payment of the balance of the funds into Court: Esber at [110] ff.

1. Accordingly, I will make the following orders:

1. Perpetual Limited as Mortgagee in Possession of Lot 12 in Deposited Plan 516014, known as 18 Dennis Street, Greystanes NSW (the Property) enter into a contract for sale of the Property to Claudia Skaff for the sum of $580,000.00 on the basis that completion of that sale takes place within forty two (42) days of the date of the said contract.

2. Perpetual Limited be restrained from otherwise selling the Property including in particular the sale of the Property at auction on 31 May 2014.

3. The First Defendant provide a Withdrawal of Caveat No. AH23673 to the First Plaintiff on settlement of the sale of the Property pursuant to contract for sale referred to in (1) above.

4. The net proceeds of the sale of the Property following payment of all monies owing to Perpetual Limited as First Mortgagee, the selling agent and the solicitors for Perpetual Limited on the sale of the Property, be paid into Court pending determination of Case No. 2013/188319 between the Plaintiffs herein and the Defendants herein.

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Decision last updated: 30 May 2014