Court of Appeal Confirms Validity of Mortgage Over Property

The Court of Appeal granted a declaration confirming the full force and effect of a mortgage over a property and ordered the sale of the property if certain conditions were not met by the respondents.

[ADDRESS] of Appeal

CITATION: [COMPANY] v [NAME] (No 2) [2010] NSWCA 327

HEARING DATE(S): On the papers

JUDGMENT DATE: 30 November 2010

JUDGMENT OF: Allsop P at 1

"1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as [ADDRESS], [ADDRESS] and being the whole of the land comprised in folio identifier 4/13841 (Property) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder.

2. An order that, if contracts for the sale of the Property by the second and third respondent are not exchanged by 15 June 2010, on terms that are satisfactory to the Appellant, then effective from 16 June 2010: (a) [NAME] be appointed in respect of the Property under section 66G of the Conveyancing Act 1919 (NSW) and that the Property be vested in such [NAME], to be held by such [NAME] upon a statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919 (NSW);

DECISION: (b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the [NAME] referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of [NAME] by the Court. (c) An order that the [NAME]' fees, expenses and legal costs be paid out of the proceeds of the sale. (d) An order that the [NAME] pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares.

3. Liberty for the parties or any Trustee appointed, to restore the proceedings on 3 days notice to seek further orders." [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: PROCEDURE - judgments and orders - additional orders by consent

LEGISLATION CITED: Supreme Court Act 1970 s 46(1)(a)

CATEGORY: Consequential orders

[COMPANY] (Appellant) PARTIES: [NAME] (First Respondent) [NAME] (Second Respondent)

FILE NUMBER(S): CA 2009/40258

COUNSEL: [redacted] [NAME] (Second Respodent)

SOLICITORS: [redacted] [NAME] (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 11418/06

LOWER COURT JUDICIAL OFFICER: Simpson J

LOWER COURT DATE OF DECISION: 3 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 478

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/40258

ALLSOP P

Tuesday 30 November 2010 [COMPANY] v [NAME] (No 2)

Judgment 1 ALLSOP P: On 12 March 2010 the Court made the following orders: "1. [NAME]'s appeal against the dismissal of its claim against [NAME] be dismissed. 2. [NAME] pay [NAME]'s costs of the appeal. 3. [NAME]'s appeal against the dismissal of its claim against [NAME] be allowed. 4. [NAME] be granted leave to further amend its amended statement of claim to claim the relief against [NAME] identified in the notice of appeal.

5. The further amended statement of claim be filed within 14 days. 6. [NAME] file within 14 days of these orders short minutes of order giving effect to the judgment to the extent that additional orders are required in consequence of the appeal being allowed.

7. If [NAME] disputes the terms of the proposed short minutes of order: (a) [NAME] should file brief written submissions accompanying the short minutes of order supporting the terms of the orders it proposes; and (b) [NAME] should file within 14 days of these orders alternative short minutes of order accompanied by brief written submissions supporting the terms of the orders she proposes. 8. [NAME] pay the costs of [NAME]'s appeal against dismissal of its claim against [NAME]. 9. [NAME], if otherwise qualified, have a certificate under the Suitors' Fund Act 1951." 2 The purpose of the orders was to allow [NAME] to file short minutes giving effect to the successful appeal by it against the dismissal of its claim against [NAME]. Within that 14 day period there were filed in court short minutes of order which were in the following terms: "1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as [ADDRESS], [ADDRESS] and being the whole of the land comprised in folio identifier 4/13841 ( Property ) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder.

(b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the [NAME] referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of [NAME] by the Court.

(c) An order that the [NAME]' fees, expenses and legal costs be paid out of the proceeds of the sale.

(d) An order that the [NAME] pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares.

3. Liberty for the parties or any Trustee appointed, to restore the proceedings on 3 days notice to seek further orders." 3 Upon that document there was an original signature on behalf of the appellant and a facsimile of a signature for [NAME]. There was apparently no debate from [NAME] as to those matters. One aspect which was not dealt with in those short minutes which is implicit in order 3 originally made and in the additional orders is that the orders for the learned primary judge dismissing the claim against [NAME] be set aside.

4 Unfortunately these orders were not brought to the attention of the Court by the Registry. There does not appear to be any prejudice to any party by these orders now being made rather than earlier. 5 In those circumstances the additional orders propounded by [NAME] and [NAME] pursuant to order 6 made on 12 March 2010 will be made. There being consent I have power to make them under the Supreme Court Act 1970, s 46(1)(a).

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