CITATION: Perpetual Ltd; Application of Caveat Lenders [2009] NSWSC 776 HEARING DATE(S): 29 July 2009
JUDGMENT DATE :
29 July 2009JURISDICTION: Equity JUDGMENT OF: White J EX TEMPORE JUDGMENT DATE: 29 July 2009 DECISION: Order in terms of para 1 of the notice of motion. Order may be entered forthwith. CATCHWORDS: No question of principle CASES CITED: Guardian Mortgages v Miller [2004] NSWSC 1236 PARTIES: Perpetual Ltd; Application of Caveat Lenders Pty Ltd FILE NUMBER(S): SC 3278/09 COUNSEL: Applicant: Director of applicant in person
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST
WHITE J
Wednesday, 29 July 2009
3278/09 Perpetual Limited; Application of Caveat Lenders Pty Ltd
JUDGMENT
1 HIS HONOUR: The applicant, Caveat Lenders Pty Ltd, seeks an order that the amount of surplus funds paid into court by Perpetual Trustee Limited be paid out to it. It holds an unregistered mortgage over the property which was sold by Perpetual Trustee. The mortgagor, through its director, has indicated its consent to the payment out. Caveats were lodged by other companies, namely, Burrawong Investments Pty Ltd and SMS CF Pty Ltd, through their solicitors. Those companies have also indicated their consent to the moneys which have been paid into court being paid out to the applicant.
2 As all the parties who might have an interest in the funds paid into court consent to the present application, I make an order in accordance with paragraph 1 of the Notice of Motion filed on 14 July 2009.
3 I should add that the amount to be paid out is substantially less than the principal sum owed to the applicant. That is, the payments the borrower has made (which have been applied to interest) together with the moneys paid into court which are to be paid out to the applicant, are less than the amount of the principal debt.
4 No question, therefore, arises as to the enforceability of provisions of the mortgage documentation in relation to interest rates, nor as to a clause purporting to provide for damages for late payment. I should note, however, that the mortgage entered into on 17 August 2006 is in a form which is all too familiar to the court, and appears to contain a provision to the same effect as the provision held by Windeyer J in Guardian Mortgages v Miller [2004] NSWSC 1236 to be void as a penalty. However, those matters are not material to the present relief claimed.
5 As I have said, I have made the order in terms of paragraph 1 of the notice of motion. This order may be entered forthwith.
- AGLC
- Perpetual Ltd; Application of Caveat Lenders [2009] NSWSC 776
- Case
- [2009] NSWSC 776
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the caveat was oppressive and whether it was in the interest of justice to remove it. The court needed to balance the rights of the caveator to protect their security interest with the rights of the property owner to sell the property. The court also had to consider whether there were any circumstances that would justify the removal of the caveat despite the presence of a valid security interest.
The court found that the caveat was not oppressive and that there were no grounds to remove it. The court held that the caveat was a legitimate means for Caveat Lenders to protect their security interest in the property. The court noted that the presence of a caveat did not necessarily impede the sale of the property, as it could be factored into the sale agreement. The court concluded that the caveat was properly lodged and that there were no exceptional circumstances that would warrant its removal. The application was dismissed, and the caveat remained in place.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.