The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2)

The Property Investors Alliance Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against orders made in proceedings against C88 Project Pty Ltd (in liq) (the respondent). The dispute concerned the extent of an equitable charge securing commission owed to the appellant by the respondent. The parties were unable to agree on the form of declaratory relief to give effect to the primary judgment, which contained a slip.

The Court of Appeal was required to determine whether the equitable charge, securing commission owing in respect of property sales, extended to all unsold units. The court also considered whether the matter should be remitted to the primary judge, given the parties' inability to agree on declaratory relief and a slip in the primary judgment.

The Court reasoned that supplementary agreements effectively incorporated the properties listed therein into the primary agreement. Consequently, the equitable charge was declared to extend to all unsold units to secure the debt owed for commission and interest. The court determined that remittal to the primary judge was not necessary for the purpose of settling the declaratory relief, but was appropriate for the consideration of orders for judicial sale.

The Court declared that commission in the amount of $527,958 plus interest was owing to the appellant and secured by an equitable charge over specified unsold units, save for one property. The proceeding was remitted to the primary judge for the purpose of considering orders for judicial sale. The parties were ordered to bear their own costs of the proceedings below and the appeal.