Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Westpac Banking Corporation [2015] NSWSC 869 Hearing dates: 19 June 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Jurisdiction: Common Law Before: Robb J Decision: No orders made. Refer to [46] and [47].
Catchwords: PROCEDURE – funds paid into Court by plaintiff mortgagee – funds represent surplus proceeds after mortgagee sale of property – two applications for payment out of Court – two competing equitable interests in land – first notice of motion adjourned and second notice of motion heard – whether applicant entitled to funds on the basis of a charge over the property sold – registered proprietors of property not named as parties to deed – signed deed as directors/secretary – whether registered proprietors parties – proper construction of deed – registered proprietors parties to deed – guaranteed repayment by debtor – despite ambiguity, the deed allowed applicant to lodge a caveat over the property – deed allowed applicant to create a charge over property by lodgement of the caveat – the issue of priority between the two competing interests must be determined – hearing of both notices of motion to be relisted for balance of issues to be determined Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Bond v Rees Corporate Advisory Pty Ltd [2013] VSCA 13
Bondi Beach Astra Retirement Village Pty Ltd v
Hohman [2010] NSWSC 260
Coleman v Bone (1996) 9 BPR 16,235
Iaconis v Laza [2007] NSWSC 1103; (2007) 13 BPR 24,937
Murphy v Wright (1992) 5 BPR 11,734; BC920350
Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572; (2011) 86 ACSR 636
Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319
Taleb v National Australia Bank [2011] NSWSC 1562; (2011) 82 NSWLR 489 Troncone v Aliperti (1994) 6 BPR 13,291; BC9402483Category: Consequential orders (other than Costs) Parties: Westpac Banking Corporation (plaintiff)
David Wai (applicant – motion filed 19.5.15)
Somy Ros (first applicant – motion filed 14.5.15)
Brian Kelly (second applicant – motion filed 14.5.15)
David Wai (first respondent – motion filed 14.5.15)
Regina Thei (second respondent – motion filed 14.5.15)
Brett Firman (third respondent – motion filed 14.5.15)Representation: Counsel: Amy Knox (applicant motion filed 14.5.15)
Solicitors: Tresscox Lawyers (applicant – motion filed 14.5.15)
M Bennett (applicant on motion filed 19.5.15)
Cordato Partners Lawyers (applicant – motion filed 19.5.15)
File Number(s): 2015/103252 Publication restriction: None
Judgment
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By a summons filed on 8 April 2015, Westpac Banking Corporation paid into Court $59,053.63 pursuant to s 98 of the Trustee Act 1925 (NSW).
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That amount represented the surplus after Westpac sold the property known as 14/26-34 McElhone Street, Woolloomooloo (the Property) under a registered mortgage granted to it by the registered proprietors of the Property, Regina Sonari Thei and Brett James Firman, after payment of all monies due to Westpac under the mortgage.
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There were before the Court two notices of…
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- AGLC
- Re Westpac Banking Corporation [2015] NSWSC 869
- Case
- [2015] NSWSC 869
- Decision Date
CaseChat Overview and Summary
The court considered the deeds and the circumstances surrounding their execution. The court found that despite the ambiguity in the deeds, the registered proprietors were parties to the deeds because they were guaranteed by the debtor. The court also found that the deeds allowed the first applicant to lodge a caveat over the property and create a charge over the property by lodging a caveat. However, the court noted that the issue of priority between the two competing interests had not been determined, and both notices of motion would need to be relisted to allow for the balance of issues to be determined.
The court did not make a final determination of the competing claims of the two applicants. Instead, the court ordered that the hearing of both notices of motion be relisted to allow for the balance of issues to be determined. The court held that the first applicant was entitled to lodge a caveat over the property and create a charge over the property by lodging a caveat, but the issue of priority between the two competing interests had not been determined. The court also found that the registered proprietors were parties to the deeds despite the ambiguity in the deeds, and the deeds allowed for the creation of a charge over the property.
The court did not make any final orders in this matter. Instead, the court ordered that the hearing of both notices of motion be relisted to allow for the balance of issues to be determined. The court held that the first applicant was entitled to lodge a caveat over the property and create a charge over the property by lodging a caveat, but the issue of priority between the two competing interests had not been determined. The court also found that the registered proprietors were parties to the deeds despite the ambiguity in the deeds, and the deeds allowed for the creation of a charge over the property.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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