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St George Bank v Meredith

St George Bank v Meredith

Case [2017] NSWSC 961 20 July 2017

Mortgages & Security Interests

Compensatory Damages

Limitation Periods

Admissibility of Evidence

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961
Hearing dates: 26 June 2017
Date of orders: 20 July 2017
Decision date: 20 July 2017
Jurisdiction: Equity
Before: Parker J
Decision:
2014/312804
Short minutes of order to provide for payment out of monies and judgments for interest.
2016/89086
Short minutes of order to provide for judgment in favour of plaintiff for principal and interest.
Catchwords: Mortgages and Securities – sale of property by mortgagee – surplus paid into court – competing claims to surplus – priority – Real Property Act 1900 (NSW), s 58(3) – statutory and equitable obligations of mortgagee holding surplus to account
Limitation of Actions – Real Property Act 1900 (NSW), s 58(3) – relevant date for accrual of claim – “then” entitled – exception to limitation defence – acknowledgment by payment – onus of proof
Civil Procedure – competing claims to surplus paid into court – proceedings brought under Trustee Act 1925 (NSW), Pt 4 – availability of interpleader procedure
Judgments and Orders – pre-judgment interest – interpleader – monies paid into court
Costs – competing claims to surplus paid into court – successful claimant’s entitlement to interest – payment of interest and costs out of surplus
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 100, 101
Conveyancing Act 1919 (NSW), s 171
Limitation Act 1969 (NSW), ss 42, 43, 54, 63
Real Property Act 1900 (NSW), ss 57(2)(b), 58(3)
Trustee Act 1925 (NSW), ss 5, 95, 99
Uniform Civil Procedure Rules 2005 (NSW), r 36.7, Pt 41, 43
Cases Cited: Aman v Southern Railway Co [1926] 1 KB 59
Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Clay v Clay (2001) 202 CLR 410; [2001] HCA 9
De La Rue v Hernu, Peron & Stockwell Ltd [1936] 2 KB 164; 2 All ER 411
Federal Commissioner of Taxation v Linter Textiles Australia Ltd (2005) 220 CLR 592; [2005] HCA 20
Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87
Residential Housing Corporation v Esber (2011) 80 NSWLR 69; [2011] NSWCA 25
Smith v Hamilton [1951] Ch 174; 2 All ER 928
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462
Vines v Djordjevitch (1955) 91 CLR 512
Category: Principal judgment
Parties:
2014/312804
St George Bank – A Division of Westpac Banking Corporation (Plaintiff)
Lynette Marie Meredith (First Defendant)
International Acceptance Pty Ltd (Second Defendant)
Greg Eastlake as Executor of the late Peter La Fontaine (Third Defendant)
Amgad and Melissa Ghabrial (Fourth Defendant)
2016/89086
Amgad Ghabrial (First Plaintiff)
Melissa Ghabrial (Second Plaintiff)
Lynette Marie Meredith (Defendant)
Representation:
Counsel:
HWM Stitt (Ghabrials)
DC Price (International Acceptance)
Trevor Hall (Solicitor) (the Estate)
Solicitors:
WKA Legal Pty Ltd (Ghabrials)
Kemp Strang (International Acceptance)
Hall Partners (the Estate)

File Number(s): 2014/312804; 2016/89086
Publication restriction: Nil

Judgment

There are before the Court two…

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 St George Bank v Meredith

Details

AGLC: St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961
Case: [2017] NSWSC 961
Decision Date: 20 July 2017

CaseChat Overview and Summary

St George Bank, a mortgagee, sought a declaration regarding competing claims to a surplus arising from the sale of a property. The case was heard in the Supreme Court of New South Wales. The dispute involved two parties, the mortgagee, St George Bank, and a creditor, who had both made claims to the surplus that had been paid into court following the sale of the mortgaged property.

The central legal issues revolved around the priority of the claims to the surplus, the application of statutory and equitable obligations under the Real Property Act 1900 (NSW), and the relevant date for the accrual of the creditor’s claim, considering the limitation defence. The court also examined the appropriateness of the interpleader procedure under the Trustee Act 1925 (NSW) and the entitlement to pre-judgment interest and costs in such proceedings.

The court determined that the creditor’s claim was not time-barred as it was acknowledged by the payment made by the mortgagee, which constituted an exception to the limitation defence. The court held that the relevant date for the accrual of the creditor's claim was when the surplus was paid into court, not when the sale occurred. Regarding the priority of claims, the court ruled in favour of the creditor, who had a superior claim to the surplus due to their prior creditor status. The court also addressed the issue of pre-judgment interest, holding that it should be paid to the successful claimant from the date the surplus was paid into court. The final orders included the declaration in favour of the creditor, the payment of pre-judgment interest, and the direction that costs be paid out of the surplus.

Orders