Slan v Edgerly and 3 ORS - [2008] NSWSC 1316

CITATION: SLAN v EDGERLY & 3 ORS [2008] NSWSC 1316

HEARING DATE(S): 5 December 2008

JUDGMENT DATE :
5 December 2008

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ at 1

DECISION: (1) Order in terms of the following claims in the further amended summons dated 4 December 2008 and noting that I have amended that document: Claim 1, claim 3, claim 3A and claim 4.
(2) Order that the second defendant remove caveat number 9128991P on or before 8 December 2008.
(3) Order that the second defendant pay the plaintiff’s costs of the proceedings.

CATCHWORDS: VENDOR and PURCHASER – purchaser’s lien for payment of part of purchase money – on a sale for $180 000 Special Clause 35 provided:“The vendor acknowledges that he has received $138,000 towards the purchase price from the purchaser in full satisfaction of the judgment obtained by the purchaser against the vendor in proceedings Number 5827/01 issued out of the District Court in Sydney. - Consideration of purchaser’s lien. HELD – purchaser’s lien exists throughout until completion even if no entitlement to repayment has arisen – consideration of Ex Parte Lord [1985] 2 Qd R 198 at 201 – purchaser’s lien for $138, 000 arose on exchange – on assessment of competing equities, an alleged unregistered mortgagee did not have a better equity than the purchaser.

CASES CITED: Black v Garnock (2007) 230 CLR 438Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226Ex Parte Lord [1985] 2 Qd R 198Heid v Reliance Finance Corporation Pty Limited (1983) 154 CLR 326 Hewett v Court (1983) 149 CLR 639Rose v Watson (1864) 10 HL Cas 672Tanwar Enterprises Pty Limited v Cauchi (2003) 217 CLR 315

PARTIES: Milad Slan (Plaintiff)Stuart Edgerly (First Defendant)Business Australia Capital Finance Pty Limited (Second Defendant)Les Jones (Third Defendant)Salauta Pty Limited (Fourth Defendant)

FILE NUMBER(S): SC 5548/04

COUNSEL: J Wilson SC (Plaintiff)
G Underwood (Second Defendant)

SOLICITORS: Slattery Thomson Solicitors (Plaintiff)
MD Nikolaidis (Second Defendant/Cross Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

FRIDAY 5 DECEMBER 2008

5548/2004 MILAD SLAN v STUART EDGERLY & 3 ORS

JUDGMENT

1 HIS HONOUR: The issues contested at the hearing of these proceedings were issues between the plaintiff Mr Slan and the second defendant Business Australia Capital Finance Pty Limited (BACF). Issues relating to the first defendant Mr Edgerly were disposed of at an earlier stage, and the third defendant Mr Jones has died and is not involved in the present issues. The fourth defendant Salauta Pty Limited recently came to an agreement with the plaintiff to transfer title in the Merrylands home unit to the plaintiff, and did not appear at the hearing.

2 Mr Slan and BACF each claim to have interests including equitable interests in Unit 10, 494-496 Merrylands Road Merrylands, the property in Folio Identifier 10/SP22976, a small home unit said to be worth $190,000, with a competing estimate in the order of $210,000.

3 The registered proprietor…

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 Slan v Edgerly and 3 ORS

Details

AGLC: Slan v Edgerly and 3 Ors [2008] NSWSC 1316
Case: [2008] NSWSC 1316
Decision Date: 5 December 2008

CaseChat Overview and Summary

In the case of Slan v Edgerly and 3 ORS, the dispute revolves around a property sale agreement involving a purchaser's lien for part of the purchase money. The transaction in question involved a sale for $180,000, with Special Clause 35 acknowledging the receipt of $138,000 from the purchaser towards the purchase price, which was in satisfaction of a judgment obtained by the purchaser against the vendor in prior proceedings. The case was heard in the Supreme Court of New South Wales. The central legal issue was whether the purchaser's lien for $138,000 existed throughout the period until completion, even if no entitlement to repayment had arisen. The court considered the case of Ex Parte Lord, which established that a purchaser's lien arises upon exchange of contracts and persists until completion. The court also assessed the competing equities between the alleged unregistered mortgagee and the purchaser to determine priority.

The court's reasoning hinged on the established principle that a purchaser's lien attaches upon the exchange of contracts and remains in effect until the transaction is completed. This principle was affirmed by the court's reference to Ex Parte Lord, which confirmed that the lien arises at the point of exchange and continues until completion, irrespective of whether the conditions for repayment have been met. In assessing the equities, the court found that the purchaser's lien for $138,000, which arose upon exchange, held precedence over the alleged unregistered mortgagee's interest. This decision underscored that the purchaser's lien, having been established at the exchange of contracts, was a stronger equity than the unregistered mortgagee's claim.

The Supreme Court's judgment confirmed that the purchaser's lien for $138,000 remained valid and enforceable throughout the period until completion, despite the absence of an immediate entitlement to repayment. The court's decision was grounded in the principle that the purchaser's lien attaches upon the exchange of contracts and persists until the transaction is finalised. This ruling ensures that the purchaser's financial interest is protected until the completion of the sale. The court's assessment of the competing equities further reinforced the purchaser's position, confirming that their interest took precedence over the alleged unregistered mortgagee.

Orders