Ageist Pty Limited v More Than Skin Deep Pty Limited [2020] NSWSC 698

Supreme Court New South Wales

Medium Neutral Citation: Ageist Pty Limited v More Than Skin Deep Pty Limited [2020] NSWSC 698 Hearing dates: 22 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Equity Before: Rees J Decision: Defendants ordered to withdraw caveat. Catchwords: REAL PROPERTY – Caveats – s 74MA Real Property Act – mortgage required consent of mortgagee before disposing of property – default on loan – notice of default – mortgagor trying to refinance – mortgagor's wife (also finance broker and director of purchaser) assisting with finance – mortgagor signs contract of sale to related parties – sale price above market – deposit not paid – unclear whether agent on contract actually retained – mortgagee not told – contract to support higher value of property for refinance – not bona fide contract of sale – offer of finance – offer not accepted – finance insufficient anyway – power of sale exercised – mortgagee sells at auction – caveat lodged citing earlier contract of sale – whether serious issue to be tried – no evidence purchaser could get finance – balance of convenience favoured removal of caveat Legislation Cited: Real Property Act 1900 (NSW), ss 57(2), 58(1), 74MA Conveyancing Act 1919 (NSW), s 111 Cases Cited: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Buchanan v Crown & Gleeson Business Finance Pty Ltd (2007) 13 BPR 24,513; [2006] NSWSC 1465 Forsyth v Blundell (1973) 129 CLR 477 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161 Pham v Zraika (No 4) [2018] NSWSC 566 Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 Waring (Lord) v London and Manchester Assuring Co Ltd [1935] Ch 310 Texts Cited: Croft & Hay, The Mortgagee's Power of Sale (3rd ed, 2012, LexisNexis Butterworths) Category: Principal judgment Parties: Ageist Pty Ltd (Plaintiff) More Than Skin Pty Ltd (First Defendant) Lupco Stojcevski (Second Defendant) Representation: Counsel: Mr D Meyerowitz-Katz (Plaintiff) Mr A Katsoulas (Defendants)