Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2)
[2013] VSC 210
•2 May 2013
| . | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST
No. SCI 2013 01103
IN THE MATTER OF an application pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic)
| ESSENDON APARTMENT DEVELOPMENTS PTY LTD (in liquidation) (ACN 145 718 485) | Plaintiff |
| v | |
| ROBERT LONG & ORS | Defendants |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2013 | |
DATE OF JUDGMENT: | 2 May 2013 | |
CASE MAY BE CITED AS: | Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 210 | |
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PROPERTY – Removal of caveats – Relevant principles – Balance of convenience favourable to the removal of caveats.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.A.J. McKillop | Partners Legal |
| For the First Defendant | Mr W.F. Rimmer | Eales & Mackenzie |
| For the Second Defendant | No appearance | |
| For the Third Defendant | No appearance | |
| For the Fourth, Fifth, and Tenth Defendants | Mr E.W. Alstegren SC with Mr A.A. Segal | D.E. Phillips |
| For the Sixth Defendant | No appearance | |
| For the Seventh Defendant | No appearance | |
| For the Eighth Defendant | No appearance | |
| For the Ninth Defendant | No appearance | |
| For Bellmar Holdings Pty Ltd | Mr P. Bingham | Cornwall Stoddart |
TABLE OF CONTENTS
Introduction............................................................................................................................... 2
Summary of submissions of caveators......................................................................................... 3
Essendon Apartment Developments Pty Ltd............................................................................. 5
Involvement of Mr Iskaff and Ms McGuire with Essendon Apartment..................................... 6
The sale to Mr Iskaff................................................................................................................... 8
Directions as to sale.................................................................................................................... 8
The caveats................................................................................................................................. 9
The liquidator’s submissions..................................................................................................... 10
Legal principles......................................................................................................................... 11
Discussion................................................................................................................................ 14
Costs......................................................................................................................................... 17
HIS HONOUR:
Introduction
On 4 April 2013, I ordered, under s 90(3) of the Transfer of Land Act 1958, that the caveats on the property at 1048-1060 Mt Alexander Road, Essendon (the land) referred to in the originating proceeding be removed and that:
(a)the first to eighth defendants be restrained from lodging any further caveat on the land; and
(b)the ninth defendant (the Registrar of Titles) refuse to make a recording in the register of any further caveat which is lodged by the first and/or second defendant in respect of the land.
(The order in para (a) was subsequently extended to the Tenth Defendants, together with further consequential mechanical orders, by signed minutes of consent dated 16 April 2013.)
I reserved my reasons. I now deliver my reasons for the orders I made.
The plaintiff (Essendon Apartment) has entered into a contract of sale with Antonio Iskaff and/or nominee to sell the land for $4,600,000. It is a term of the agreement that the caveats lodged over the title be removed. Essendon Apartment is in liquidation; Mr Rohrt is the liquidator.
The caveators of five caveats lodged over the titles to the land have not sought to uphold their caveats. These are the second, third, sixth, seventh, and eight defendants respectively. I ordered the removal of their caveats. The seventh defendant (Mr Charbel Kanati) will withdraw his caveat at settlement of the contract of sale but also opposed the settlement of the contract of sale.
The fourth, fifth, and tenth defendants (Mr Antonio D’Anna, Smit Superannuation Pty Ltd, and Mr and Mrs Walhan and Rima Kaake respectively) have each lodged a caveat and seek to uphold it. They are each represented by Mr Alstegren SC and Mr Segal. They have been described as the ‘off the plan’ caveators. They each claim an interest in the land by reason of entering into a contract to purchase a unit or units in the development of the land and the payment of a deposit on the contract to purchase. They have each lodged a caveat over the land on the basis of those contracts and deposits paid.
The fourth caveat sought to be upheld is that of Mr Long. Mr Long is represented by Mr Rimmer. Mr Long lodged three caveats. He accepts that two are invalid, as Essendon Apartment was being wound up or under administration when they were lodged. Mr Long accepts that the only valid caveat could be that of 25 June 2012. That caveat relies on an instrument of charge made on 15 December 2011.
The land is subject to a first and second mortgage which were registered on 8 December 2010 and 20 September 2011, respectively. Both of the mortgages predate Mr Long’s instrument of charge. The first mortgage predates the contracts for purchase of units and the payment of deposits.
Essendon Apartment submits that its application to remove the caveats should succeed since the balance of convenience favours it. Essendon Apartment says that there will be no funds available for any of the caveators after the first and second registered mortgages are met and the costs and expenses of sale are satisfied, and, accordingly, the balance of convenience favours the removal of the caveats.
The caveators submit that moneys should be available, and, accordingly, the balance of convenience does not favour the removal of the caveats.
For the following reasons, in my opinion, the balance of convenience favours the removal of the caveats.
Summary of submissions of caveators
Mr Long relies on the submissions of the off the plan caveators. In summary, the ‘off the plan’ caveators submit as follows:
(a)the ‘off the plan’ purchasers have an equitable interest in the property which can be protected by caveat;
(b)once it is established that the caveats may have substance, the ‘off the plan’ caveators contend that the court will allow the caveators priority to be jeopardised only in rare circumstances;
(c)that there is a serious question to be tried about the authenticity of the earlier contract between Essendon Apartment and Mr Iskaff purportedly entered into on 15 May 2012, which is recognised in the contract of sale;
(d)that the contract of sale allows for the sum of $430,000 purportedly paid by Mr Iskaff under the previous contract of sale, when the evidence suggests that no such amount was paid pursuant to a contract of sale;
(e)that at settlement, the liquidator proposed to pay out the second mortgage (the Protem mortgage) in full in circumstances where there is a serious question about the quantum of funds advanced by Protem mortgage to Essendon Apartment;
(f)that the Protem mortgage has recently been assigned to Mr Iskaff (via his company, Iris Apartments Pty Ltd). They say that by taking an assignment of the Protem mortgage, Mr Iskaff may effectively be reducing the purchase price. They say the terms of that assignment remain unknown, despite requests for disclosure of the same;
(g)that the serious questions surrounding the previous contract and the Protem mortgage should be determined before settlement of the contract of sale. They say it is worth over a million dollars in potential funds available to creditors and could enable the ‘off the plan’ purchasers to recover part or all of their investment;
(h)that if settlement of the contract of sale is allowed to proceed, the ability to seek to recover those funds may be lost by reason of the merger of those rights in the settlement; and
(i)in the circumstances, that the balance of convenience favours the maintenance of the caveats.
Essendon Apartment Developments Pty Ltd
On 5 December 2012, Essendon Apartment was wound up. Essendon Apartment was formerly known as Phoenix Business Development Group Pty Ltd. This name was changed on 19 July 2012.
Essendon Apartment is the owner of 1048-1060 Mount Alexander Road, Essendon, a development site of approximately 2003 square metres. The land consists of two titles.
Essendon Apartment was registered on 11 August 2010. It became the registered proprietor of the land on 8 December 2010. Essendon Apartment acquired the land for the purposes of holding and developing the land into a strata unit development. Prior to the liquidator’s appointment, Essendon Apartment sold apartments ‘off the plan’ to buyers, prior to any plan of subdivision being approved. No plan has been approved or registered at this stage.
Prior to the liquidator’s appointment, Essendon Apartment had been in receivership, with Mr Ross McDermott appointed as a receiver and manager on 5 October 2012. He was appointed by Mr Pasquale Lanciana, a third mortgagee. Mr McDermott resigned as receiver upon the appointment of the liquidator, as his appointing creditor’s security was unregistered and was, accordingly, void as against the liquidator.
Essendon Apartment has secured creditors to the value of $4,515,011, as follows:
(a)Bellmar Holdings Pty Ltd (Bellmar) is first mortgagee of the land, and is owed approximately $3,200,000;
(b)Protem Pty Ltd, which has assigned its charge to Iris Apartments Pty Ltd on 8 February 2013 as second mortgagee of the land, is owed approximately $800,000;
(c)Pasquale Lanciana as third mortgagee, who is owed approximately $380,000;
(d)Robert Long as a caveator, who claims he is owed approximately $75,000; and
(e)other caveators of some ten in number that have lodged caveats against the company.
At the time of liquidation, Mr Smit was the sole director of Essendon Apartment. The liquidator has not received a report as to affairs from the Director, Mr Smit, at this stage. The liquidator has been informed by the solicitor for Mr Smit that Essendon Apartment owes approximately $2,783,721 to unsecured creditors.
On the basis of the sale to Mr Iskaff, the company will have a deficiency of assets over liabilities of approximately $2.7 million.
On or about 31 January 2013, the first mortgagee, Bellmar, took possession of the land pursuant to its rights as first mortgagee. The liquidator has agreed with Bellmar that he should continue his efforts to sell the land, rather than Bellmar sell it through an agent.
As discussed below, the liquidator has entered into a contract of sale with Mr Iskaff and/or nominee after obtaining directions from the court. Before seeking directions, the liquidator had identified two potential buyers for the land, Antonio Iskaff and/or nominee, and Danielle McGuire and/or nominee.
Involvement of Mr Iskaff and Ms McGuire with Essendon Apartment
The following history is based on information obtained by the liquidator. Mr Joe Cullia and Mrs Mary Cullia first identified the land. They purchased the land and a business operating on it, being a flower nursery and café/restaurant, in or around February 2010 for some $3.72 million.
Mr and Mrs Cullia paid a five per cent deposit, with the balance due at settlement, nine months later (in approximately November 2010).
Mr and Mrs Cullia were personal friends of Jennifer Shaw, who held a senior position at Legal Aid Victoria. At that time, neither the Cullias or Ms Shaw knew Ms Danielle McGuire or any of Ms McGuire’s friends or associates.
Ms McGuire frequented the café/restaurant and struck up a friendship with the Cullias. When settlement was due around November 2010, the Cullias experienced some difficulties in procuring the necessary funds in full to settle. Ms Shaw provided some $200,000 by mortgaging her private home, and Ms McGuire also offered to assist. Ms McGuire introduced Mr Charbel Kanati to the Cullias, and he provided some $370,000, and Mr Iskaff, who provided some $950,000 to assist settlement.
Essendon Apartment was then incorporated on 11 August 2010, and Ms Shaw was appointed sole director and shareholder that day, but only for about six weeks.
Ms Cullia became a replacement director on 20 September 2010, before resigning, and Ms Shaw again became a replacement director on 24 January 2011 for some 16 months.
Mr Iskaff was appointed a director on 10 July 2012 as a result of becoming the purchaser of the land pursuant to a contract of sale that he entered into with Essendon Apartment on 15 May 2012. As discussed below, this contract of sale has been confirmed by the terms of the contract of sale entered into between Mr Iskaff and the liquidator.
A dispute arose around July-August 2012 over the transfer of a single share in Essendon Apartment from Ms Shaw to Mr Jack Smit (an associate of Ms McGuire). Ms Shaw claims that the share transfer was fraudulent and done without her consent or knowledge.
This share transfer nonetheless provided Mr Smit with the power to appoint or remove directors and, accordingly, Mr Smit appointed himself as a director, effectively 17 May 2012.
Mr Iskaff was removed as a director, effective 2 October 2012, leaving Mr Smit as sole director and sole shareholder.
The sale to Mr Iskaff
On or about 15 May 2012, Essendon Apartment entered into a contract to sell the land to Mr Iskaff and/or nominee. The sale price was $4.3 million. The key elements of Mr Iskaff’s contract were:
(a)price: $4.3 million;
(b)deposit: $430,000;
(c)time for completion: 30 November 2012, 30 days after default under a mortgage on the land, or otherwise by agreement;
(d)price net of deposit: $3,870,000, which would be available for secured and unsecured creditors.
As discussed below, Ms McGuire disputes that a deposit of $430,000 was paid to, or for the benefit of, Essendon Apartments.
Directions as to sale
The liquidator received an offer to purchase the land from Mr Iskaff and Ms McGuire. Ms McGuire offered a price of $4,200,000 on a deposit of $200,000. She also offered $700,000 of the proceeds of the sale of the development proposed to be built on the land for payment to unsecured creditors.
Mr Iskaff offered a price of $4,600,000 with a deposit of $460,000. It was a term of Mr Iskaff’s offer that the deposit of $430,000 purportedly paid on 15 May 2012 be acknowledged and accepted as paid so that only a further sum of $30,000 was payable on the deposit.
Mr Iskaff also offered to provide the proceeds from the sale of one apartment (estimated to be some $500,000) for payment to unsecured creditors.
Thus, the sum available to be distributed to secured and unsecured creditors on Mr Iskaff’s offer was $4,170,000 made up as follows:
Price
$4,600,000
Less Deposit
paid 15 May 2012
$460,000
Net Sum
$4,140,000
Plus Deposit
$30,000
Total
$4,170,000
For reasons it is not necessary for me to canvass in this judgment, the liquidator wished to accept the offer of Mr Iskaff and not accept the offer of Ms McGuire. The liquidator gave evidence that he did not trust that Ms McGuire’s interests would have the funds to settle the contract if the contract had been entered into with her.
The liquidator sought a direction from the Court that the liquidator was justified in selling the land to Mr Iskaff and/or nominee under the terms referred to above. The matter came on before me. After a contested hearing at which Ms McGuire was represented by both senior and junior counsel, I made the directions sought by the liquidator on 20 February 2013.[1]
[1]See Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 1) [2013] VSC 209.
The caveats
The fourth defendant, Mr Tony D’Anna, says that he purchased a unit on behalf of family members and family investment companies on 30 May 2012. He paid deposits of some $260,000. He lodged a caveat prepared by Ms McGuire on 25 January 2013. The caveat was lodged by Ms McGuire. It claimed an estate in fee simple. The grounds are stated as ‘equitable interest as beneficiary under a constructive trust’.
The fifth defendant, Smit Superannuation Pty Ltd, lodged a caveat prepared by Ms McGuire on 14 January 2013 claiming a fee simple interest as an equitable interest as beneficiary under a constructive trust. Mr Smit signed a contract on behalf of the fifth defendant to purchase Unit 6.03 under a contract dated 30 May 2012 for a price of $490,000.
The tenth defendants agreed to purchase Unit 3.03 for $555,000 on a contract of sale dated 30 May 2011. They paid $50,000 deposit. Their caveat was filed by solicitors Burdo Erci and claims that estate in fee simple pursuant to a contract of sale dated 30 May 2011 between Walhan Kaake and Rima Kaake as purchasers and Phoenix Business Development Group Pty Ltd as vendor.
Mr Long is an investment broker. By an agreement dated 15 December 2011, Mr Long was engaged by Essendon Apartment (then called Phoenix Business Development Group Pty Ltd) to procure finance. He has deposed that under this agreement the balance owing to him is $74,700. The agreement contains a charge over the land to secure the fees owing. Mr Long did not lodge a caveat to give notice of this charge until 25 January 2013.
The liquidator’s submissions
The liquidator deposes that the financial position of Essendon Apartment if the sale proceeds would be as follows:
Contract of Sale
$4,600,000
Less original deposit paid by Iskaff
$430,000
Less additional deposit paid by Iskaff March 2013
$30,000
Balance payable
$4,140,000
Less amounts due to mortgagees
Bellmar Holdings Pty Ltd (first mortgagee)
$3,200,000
Protem Pty Ltd (second mortgagee)
$800,000
Pasquale Lanciana (third mortgagee)
$380,000
Total
$4,380,000
Less remuneration of costs of liquidator (estimated)
$ 240,000
Less additional legal expenses (foreshadowed summons)
$150,000
Balance available to caveators
($630,000)
The liquidator says that in this case, the first mortgage will be discharged in full but that the second mortgage will suffer a shortfall of some $250,000 and no funds will become available to the third mortgagee or the other claimants on the company.
Legal principles
All parties accept that the onus rests on the caveator to justify the caveat. The test to be applied is that similar to obtaining an interlocutory injunction.[2]
[2]In the following paragraphs I adopt the submissions of Mr McKillop for the Plaintiff.
In Schmidt v 28 Myola Street Pty Ltd,[3] Warren CJ described the nature of the exercise of the Court’s discretion under s 90(3):
Without being exhaustive, the proper exercise of the discretion under s 90(3) will involve considering: in which party’s favour the balance of convenience lies; whether there is a serious question to be tried; and whether the caveator claims an interest wider than what the caveator may be entitled. These questions inform the ultimate consideration, that is, whether the caveator has discharged his or her onus of justifying the maintenance of the caveat. The process is comparable to the exercise undertaken in granting or denying an interlocutory injunction. Such is the nature of this exercise, the problem highlighted above in Evindon is subsumed by the questions of whether there is a serious question to be tried and in which party’s favour the balance of convenience lies.[4]
[3][2006] VSC 343.
[4]Ibid, [32] (citations omitted).
In Goldstraw v Goldstraw,[5] Dodds-Streeton J stated that:
Section 90(3) is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The Court’s power under s.90(3) is discretionary. In that context, it is recognised that the caveator bears the onus of establishing that there is a serious question to be tried that he or she does have the estate or interest in the land claimed. That is, ‘in order to resist successfully the applications for removal of caveats (the caveator’s) arguments must be directed towards the assertion of an interest in the subject land in the light of relevant principles of property and equity law[’]. Further, if the caveator does establish the serious question to be tried in relation to the estate or interest claimed, the weight of authority indicates that the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.[6]
[5][2002] VSC 491.
[6]Ibid, [30] (citations omitted).
In circumstances where a registered proprietor applies to remove a caveat, where the unregistered encumbrance has no prospect of receiving a share of sale proceeds, the caveat ought to be removed: see discussion at pp 205-206 in Shannon Lindsay’s Caveats against Dealings in Australia and New Zealand (Federation Press, 1995). That passage refers to a decision of Tadgell J in Wright v Bridge Wholesale Acceptance Corporation (Australia) Ltd.[7] In that case, his Honour stated the following:
The question remains, however, whether, even assuming that the equitable security interest which the defendant claims is enforceable, and therefore capable of supporting a caveat, the caveat should be allowed to stand. The argument for the defendant that it should stand is fundamentally that, without the caveat, the defendant’s equitable security will be unprotected. I am unable to see that this is so.
It must be remembered that the defendant’s security, upon the assumption that it is enforceable, is, after all, an equitable security that is not capable of being registered on the certificate of title. It depends for its efficacy and its utility to the defendant upon its being accorded such priority as it deserves relative to any other rights by way of security over the subject land. Ultimately its utility to the defendant is as a security which entitles the defendant to have the land realised and to be paid out of the proceeds of realisation such amount as it is entitled to receive therefrom. If and so long as the land were not the subject of a contract of sale it would, so far as appears in this case, be appropriate that the caveat should remain in order to protect the defendant’s priority. Since, however, the plaintiff as registered proprietor desires to sell the land, the proceeds will be available to those entitled at the time of sale according to their respective priorities. Without the removal of the caveat settlement of the contract of sale cannot proceed, and that position avails nobody.
There is, in my opinion, no occasion in the circumstances of the present case to block the sale pending the resolution of the entitlements of any possible conflicting claimants to the proceeds. The defendant’s claim that it has priority over the bank in respect of part at least of the proceeds has now as little or as much weight as it will ever have. The question of any priority the defendant has as against the bank can, so far as I can see, be resolved as well after the caveat has been removed, and the proceeds of sale have been paid by the purchaser, as it can before a sale is concluded.[8]
[7][1993] 1 VR 502.
[8]Ibid, 506-507.
In summary: where there is doubt about the amount secured by a registered mortgage, the appropriate order is not to maintain the caveat, but to remove it and to determine the amount secured by the mortgage and questions of priority after the sale.
Like any application for an interim injunction, if the caveator’s case to establish a serious question to be tried is weak, then the balance of convenience is more likely to favour removal of the caveat.[9]
[9]See Lindsay, Caveats against Dealings in Australia and New Zealand (Federation Press, 1995), p 210 and cases cited in fn 290.
Discussion
For the purposes of the current application, the liquidator did not seek to dispute that the caveators had an equitable interest arising out of the payment of the deposits and the financing agreement, although the liquidator does not admit that they would have a caveatable interest.
The liquidator contends that the caveators’ interest does not give them any right to a proprietary interest in a unit, as the plans for the units had not been approved nor had building of the units commenced. The liquidator says that the interest, if any, would be in a monetary claim such as a lien.
The caveators did not contend that their interest would be any greater than a monetary claim secured over the property. The only possible source to meet these claims is from the proceeds of the sale of the property.
The nub of the caveators’ case is that the balance of convenience does not favour the removal of the caveats, as the liquidator has not ensured that all moneys that are possibly recoverable on the sale will be recovered by the liquidator.
In particular, the caveators say that the liquidator should seek to set aside the second mortgage as an unfair transaction. Further, the caveators contend that the sum of $460,000 purportedly paid as a deposit on the first mortgage was not paid and that the liquidator should pursue the recovery of that sum from the purchaser, Mr Iskaff.
The caveators say that the second mortgage was an unfair loan under s 588FD of the Corporations Act 2001. They say it bore an interest rate of 60% per annum or 72% per annum if in default. The liquidator has addressed this issue in his evidence. He points out that the loan was for only three months. The interest rate was 5% per month. The loan was a second mortgage. The property secured was not developed. The loan was risky, as in fact had been demonstrated by the fact that the loan has not been repaid and that the company has gone into liquidation and the second mortgagee will not be repaid in full.
The caveators, for their parts, produced no evidence that the loan was unfair. They merely asserted it was from the Bar table by reason of the rate of interest.
Section 588FD provides:
(1) A loan to a company is unfair if, and only if:
(a)the interest on the loan was extortionate when the loan was made, or has since become extortionate because of a variation; or
(b)the charges in relation to the loan were extortionate when the loan was made, or have since become extortionate because of a variation;
even if the interest is, or the charges are, no longer extortionate.
(2) In determining:
(a)whether interest on a loan was or became extortionate at a particular time as mentioned in paragraph (1)(a); or
(b)whether charges in relation to a loan were or became extortionate at a particular time as mentioned in paragraph (1)(b);
regard is to be had to the following matters as at that time:
(c)the risk to which the lender was exposed; and
(d)the value of any security in respect of the loan; and
(e)the term of the loan; and
(f)the schedule for payments of interest and charges and for repayments of principal; and
(g)the amount of the loan; and
(h)any other relevant matter.
Mr Alstergren submitted that the second mortgage constituted an unfair commercial mortgage, and (secondly) that there is a real issue as to the validity of the payments made under the second mortgage.
Mr Alstergren says that the second mortgage was secured upon Ms Shaw’s personal property, as well as that of Essendon Apartment. Mr Alstergren says that the money went to Ms Shaw’s personal benefit, rather than for Essendon Apartment. If that be the case, that does not, by itself, undermine the validity of the mortgage.
I am not satisfied that the loan was an unfair loan under s 588FD or that the liquidator was in error in deciding that it was not. On the evidence, the lender was exposed to relatively high risk. The mortgage was a second mortgage on an undeveloped development. There is no evidence of the value of the security. The loan was for three months. The loan was only for $120,000.
As to the $430,000, the caveators contend that this was never paid as a deposit. The liquidator does not accept that. He has made inquiries and is satisfied it was paid. In any event, the offer made to the liquidator, which he has accepted upon a direction from the Court, was that $460,000 would be paid as a deposit, that the contract would provide that the previous contract was valid and enforceable, and that the $430,000 deposit would be treated as being ratified and paid towards the deposit of $460,000.
The agreement thus prevents the liquidator from pursuing the $430,000, even if the deposit had not been paid. Accordingly, the caveators have not established that the liquidator is in any event remiss in settling without pursuing the $430,000.
Accordingly, the caveators have not established that the liquidator should not settle on the basis that he proposes. On the contrary, if he does not settle, it is likely that the first mortgagee will sell the property. According to the valuation evidence presented to the Court, the properties may only achieve a sale price of $3,500,000 if sold under a forced sale by the first mortgagee, far less than what will be achieved under the contract the liquidator was able to make with Mr Iskaff.
I am also persuaded by the fact that the issues of priority as to secured sums, if they need to be further pursued, can be pursued after settlement. The priority interests as to secured sums of the claimants are not lost by the sale.
For these reasons, I find that the balance of convenience favours the sale proceeding and that the caveats be removed.
Costs
[After hearing the parties, his Honour ordered as follows:] In the circumstances, I will order the first, fourth, fifth and tenth defendants pay the costs of the plaintiff on a necessary or proper basis, save for the costs of the 14th and 26th of March 2013 (where there will be no order as costs).
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