AVS Property Pty Ltd v McMaster [2010] FCAFC 81

FEDERAL COURT OF AUSTRALIA

AVS Property Pty Ltd v McMaster [2010] FCAFC 81 Citation: AVS Property Pty Ltd v McMaster [2010] FCAFC 81

Appeal from: Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in Liq) (No 5) [2008] FCA 1700

Parties: AVS PROPERTY PTY LTD v BRIAN KEITH MCMASTER AND MARK FRANCIS XAVIER MENTHA (IN THEIR CAPACITY AS JOINT AND SEVERAL RECEIVERS OF THE MEWS SCHEME), PETER HASTINGS WARNE and WESTERN RETIREMENT VILLAGE MANAGEMENT PTY LIMITED (IN LIQUIDATION) (ACN 091 443 239)

File number: VID 324 of 2009

Judges: SUNDBERG, STONE & EDMONDS JJ

Date of judgment: 9 July 2010

Catchwords: CORPORATIONS – winding up – genuine dispute between mortgagee and receivers as to amount secured by mortgage – dispute jeopardised timely sale of land – court ordered discharge with proceeds of sale to be held in an interest bearing account pending resolution of dispute – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate REAL PROPERTY – mortgages – court ordered discharge to be provided – proceeds of sale held in interest bearing account pending resolution of dispute as to amount secured by mortgage – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate EQUITY – consideration of Court's discretion in imposing condition on which proceeds held in interest bearing account – obligation to consider whether condition just and reasonable between the parties