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Ultimate Property Group Pty Ltd v Lord

Ultimate Property Group Pty Ltd v Lord

Case [2004] NSWSC 114 4 March 2004

Mortgages & Security Interests

Statutory Construction

Property Law

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Reported Decision:
60 NSWLR 646
(2004) 22 ACLC 423
(2004) NSW ConvR 56-092

Supreme Court

CITATION: Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114

HEARING DATE(S): 25, 26 February 2004

JUDGMENT DATE:
4 March 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings by mortgagor/guarantors dismissed.

CATCHWORDS: MORTGAGES [58][63]- Power of sale- Allegation of inadequate price- Remedies of mortgagor/guarantors- How far general law affected by Corporations Act 2001 (Comm) s 420A.

LEGISLATION CITED: Corporations Act 2001, ss 420A, 423, 1311, 1317H, 1324

CASES CITED: American Express International Banking Corp v Hurley [1985] 3 All ER 564
ANZ Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195
ANZ Banking Group Ltd v Wright (Giles J, 3.7.1997)
Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565
Bank of New South Wales v Taylor (1881) 2 LR (NSW) 118
Barns v Queensland National Bank Ltd (1906) 3 CLR 925
Castlereagh Motels Ltd v Davies-Roe (1966) 67 SR (NSW) 279
Clay v Sharpe (1802) 18 Ves 348; 34 ER 348
Colson v Williams (1889) 61 LT 71; [1886-1890] All ER Rep 1040
Commercial & General Acceptance Ltd v Nixon (1981) 152 CLR 491
Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614
Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949
Emerson v Custom Credit Corporation Ltd [1994] 1 Qd R 516
Expo International Pty Ltd v Chant [1979] 2 NSWLR 820
Forsyth v Blundell (1973) 129 CLR 477
GE Capital Australia v Davis (2002) 11 BPR 20,529
Gomez v State Bank of NSW [2001] FCA 1059
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15,581
Healy v Cornish (1863) 3 SCR Eq 28
Hunt v Rousmanier's Administrators (1823) 21 US 379
Jeogla Pty Ltd v ANZ Banking Group Ltd (1999) 150 FLR 359
London and Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd [1971] Ch 499
Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439
O'Connor v S P Bray Ltd (1937) 56 CLR 464
Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676
Porter v Associated Securities Ltd (1976) 1 BPR 9279
Qorum Pty Ltd v Younger [1995] NSW Conv R 55-738
Re Hodson & Howes' Contract (1887) 35 Ch D 668
Skinner v Jeogla Pty Ltd [2001] NSWCA 15
Spencer v The Commonwealth (1905) 5 CLR 418
State Bank of NSW v Vincent (Giles J, 7.4.1995)
Stone v Farrow Mortgage [1999] NSWCA 435
Taylor v Bank of New South Wales (1886) 11 App Cas 596
Tomlin v Luce (1889) 43 Ch D 191
Tooth & Co Ltd v Lapin (1936) 53 WN (NSW) 224
Walsh v Whitcomb (1797) 2 Esp NP 565; 170 ER 456

PARTIES :
Ultimate Property Group Pty Limited (P1)
Ultimate Solutions Pty Limited (P2)
Andrew Alexopoulos…

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 Ultimate Property Group Pty Ltd v Lord

Details

AGLC: Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114
Case: [2004] NSWSC 114
Decision Date: 4 March 2004

CaseChat Overview and Summary

In the matter of Ultimate Property Group Pty Ltd v Lord, the dispute centred around the sale of a property held as security for a mortgage, with the mortgagor and guarantors alleging that the sale price was inadequate. The case was heard in the Federal Court of Australia, where the issues of the adequacy of the sale price and the remedies available to the mortgagor and guarantors under the general law were examined. The court was also required to consider the extent to which the Corporations Act 2001 (Cth) section 420A affected the general law remedies.

The court considered whether the power of sale clause in the mortgage allowed the mortgagee to sell the property for an inadequate price and what remedies were available to the mortgagor and guarantors. The primary focus was on whether the general law remedies remained applicable despite the provisions of the Corporations Act 2001 (Cth). The court examined whether the sale price was indeed inadequate and if the sale could be challenged under the general law. It was also necessary to determine whether the statutory provisions of the Corporations Act 2001 (Cth) limited the ability of the mortgagor and guarantors to seek relief under the general law.

The court concluded that the sale price was not inadequate and that the sale complied with the terms of the mortgage and the requirements of the law. The court found that the statutory provisions of the Corporations Act 2001 (Cth) did not entirely displace the general law remedies available to the mortgagor and guarantors. However, the court noted that the remedies available under the general law were subject to the constraints imposed by the Corporations Act 2001 (Cth). The court found that while the sale price was not inadequate, the mortgagor and guarantors could still seek relief under the general law, subject to the statutory provisions.

The court ordered that the sale of the property be upheld, and the mortgagee was entitled to the proceeds of the sale. The court also noted that the mortgagor and guarantors could seek other remedies available under the general law, provided they complied with the statutory constraints. The court's decision provided clarity on the interplay between the statutory provisions and the general law, affirming that the general law remedies remained available, albeit within the confines of the Corporations Act 2001 (Cth).

Orders