Vidovic v MKM Capital Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

VIDOVIC  v  MKM CAPITAL PTY LTD & ANOR

[2010] SASC 164

Reasons of Judge Withers a Master of the Supreme Court

31 May 2010

PROCEDURE

Mortgagee sale - payment of surplus funds.

Real Property Act 1886 (SA) s 135, referred to.
Bofinger & Anor v Kingsway Group Limited & Ors (2009) 239 CLR 269; Mercantile Credits Ltd v Australia and New Zealand Banking Group Ltd (1988) 48 SASR 407; Fisher & Lightwood's Law of Mortgage par 20.48, applied.
Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075; Sabah Yazgi v Permanent Custodians Ltd [2007] NSWCA 240; Angas Securities Ltd & KWS Capital (No 2) Pty Ltd v Williams (unreported, Judge Chivell, 26 April 2007, [2007] SADC 41), considered.

VIDOVIC  v  MKM CAPITAL PTY LTD & ANOR
[2010] SASC 164

1. JUDGE WITHERS.   The plaintiff initiated these proceedings by summons filed on 15 January 2010.  At the same time the plaintiff filed an interlocutory application seeking summary judgment in the following terms:

   2.That summary judgment be granted to the plaintiff against the defendant with Orders that the defendant comply with Section 135 of the Real Property Act 1886 (SA) and:

   2.1    the defendant advise the plaintiff in writing prior to settlement the balance of funds to be paid to the plaintiff in her capacity as the second mortgagee;

   2.2    the defendant provide adjusted cheque details with respect to the amount to be paid to the defendant’s solicitors (Fisher Jeffries Trust Account) after allowing for the amount to be paid to the plaintiff as the second mortgagee, from the balance of the funds constituted by the purchase price (as adjusted);

   2.3    the defendant be liable for the costs of this application and not deduct its costs from the settlement proceeds due to the plaintiff as the second mortgagee, and/or the mortgagor;

   2.4    the defendant refrain from charging additional interest after 13 January 2010; and

   2.5    the defendant’s legal costs in this action and any costs paid by it be borne by it and the defendant not seek [sic] recover those from the plaintiff or the mortgagor.

2. That interlocutory application was supported by an affidavit of the plaintiff filed on that date (FDN 3) setting out the background to the matter.  In addition an affidavit of a Mr Paul Short, who is a conveyancer, was filed on 18 January 2010 (FDN 4) setting out his views as to what would normally happen on a property settlement.  An affidavit of John Birnie Bulman was also filed on 18 January 2010 (FDN 5) in support of the plaintiff’s application.  On 20 January 2010 the plaintiff filed a further affidavit exhibiting correspondence between the solicitors from the parties and verifying the facts alleged in a statement of claim filed on 19 January 2010 (FDN 6).

3. In that statement of claim the plaintiff pleads that the defendant holds a first registered mortgage over property located at Lady Gowrie Drive, Largs North (“the property”).  The plaintiff…