Rathner (Liquidator), in the matter of PE Capital Nominees Pty Ltd (In Liq) v Runner Investment Limited [2023] FCA 754

Federal Court of Australia Rathner (Liquidator), in the matter of PE Capital Nominees Pty Ltd (In Liq) v Runner Investment Limited [2023] FCA 754 File number(s): VID 585 of 2021

Judgment of: MCEVOY J

Date of judgment: 5 July 2023

Catchwords: MORTGAGES AND SECURITIES – where trustee company legally owned land which was the subject of three registered mortgages – company defaulted and went into liquidation – application by liquidators for orders in relation to trust assets – cross claims in relation to the land by mortgagees – where first mortgagee refused to exercise power of sale under s 77 of the Transfer of Land Act 1958 (Vic) – where second mortgagee sought to exercise the power of sale – where first and third mortgagees contended that the second mortgagee could not exercise the power of sale by reason of the terms of a priority deed – whether first mortgagee could enforce the priority deed to prevent the sale of the land by the second mortgagee – whether first mortgagee had the benefit of the priority deed under a trust – validity of notice of default issued under s 76 of the Transfer of Land Act 1958 (Vic) by second mortgagee – whether first and third mortgagee entitled to discretionary relief – whether second mortgagee could validly exercise power of sale by discharging first mortgage debt from proceeds of sale – when first mortgagee's entitlement to interest ends – whether utility in granting relief – where second mortgagee would have been entitled to relief had the first mortgagee not subsequently disposed of the land

Legislation: Corporations Act 2001 (Cth) s 468; Sch 2, s 90-15 Interpretation of Legislation Act 1984 (Vic) s 38 Transfer of Land Act 1958 (Vic) ss 45(2), 76, 77, 90(3), 116A Trustee Act 1958 (Vic) s 63 Property Law Act 1958 (Vic) ss 18, 50, 56(1), 78, 86, 222 Property Law Act 1969 (WA) s 11(1) Federal Court (Corporations) Rules 2000 (Cth) r 2.2 Federal Court Rules 2011 (Cth) r 16.05(2) Conveyancing and Law of Property Act 1881 (UK) s 5 Law of Property Act 1925 (UK), s 56(1), 78(1), 205(ix)