Ageist Pty Ltd v More Than Skin Pty Ltd [2020] NSWSC 1117

Supreme Court New South Wales

Medium Neutral Citation: Ageist Pty Ltd v More Than Skin Pty Ltd [2020] NSWSC 1117 Hearing dates: 10, 15, 24 and 30 July 2020, 14 August 2020 Decision date: 21 August 2020 Jurisdiction: Equity Before: Robb J Decision: See pars [96], [109], [124]-[125], [137], [178]-[180] and [186]. I will give the plaintiff and the second defendant a short period to consider their position, and determine whether they can offer to the Court a satisfactory undertaking as to damages to support the interlocutory order that they seek from the Court. I will determine the orders that are most appropriate on the basis of those responses. Catchwords: LAND LAW — Caveats — Removal of caveat — Removal by order of court — whether there is a serious question to be tried — where the second defendant made a complaint to the Australian Financial Complaints Authority with respect to the exercise of a mortgagee's power of sale — where that right was subsequently assigned to the plaintiff, who was not subject to the Australian Financial Complaints Authority Scheme — where the operation of s 333 of the National Consumer Credit Protection Act 2009 (Cth) means that is unlikely that the assignment would be invalid — where there is a real risk that the property will be sold at a substantial undervalue after an 11 day advertisement process — where there is a substantial prospect that the Court will find, on a final hearing, that the plaintiff has breached its duty of good faith in the manner of the sale — where the amount the plaintiff is entitled to recover from the second defendant under his guarantee should be reduced as the increase in default interest may be a penalty — whether the guarantee of the debt is liable to be unenforceable under the Contracts Review Act 1980 (NSW) — where there are multiple serious questions to be tried LAND LAW — Caveats — Removal of caveat — Removal by order of court — whether the balance of convenience is in favour of the caveat being withdrawn — where there are numerous considerations, including interest and valuation, as to whether the security value of the properties has been exhausted — where there must be a significant probability that the effect of the prevention of completion of the Contract would impose a risk of ultimate loss on the plaintiff — where there is substantial reason for doubt that the plaintiff would have the means to pay compensation to the second defendant — where both the plaintiff and the second defendant have not offered a valuable undertaking as to damages to either secure the continuation or withdrawal of the caveat — result pending on the undertaking proposed Legislation Cited: Contracts Review Act 1980 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) National Consumer Credit Protection Act 2009 (Cth) Real Property Act 1900 (NSW) Cases Cited: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; [1989] HCA 15 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Forsyth v Blundell (1973) 129 CLR 477; [1973] HCA 20 Gnych v Polish Club Ltd (2015) 255 CLR 414; [2015] HCA 23 Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; [1912] HCA 9 Stone v Farrow Mortgage Services Pty Ltd (in liq) (1999) 12 BPR 22,175; [1999] NSWCA 435 Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410; [1978] HCA 42 Texts Cited: W D Duncan and W M Dixon, The Law of Real Property Mortgages (1st ed, 2007, Federation Press) Category: Principal judgment Parties: Ageist Pty Ltd (plaintiff) More Than Skin Pty Ltd (first defendant) Steven Murabito (second defendant) Little Town Pty Ltd (third defendant) Representation: Counsel: A Martin (plaintiff) D Carbone (sol) (first defendant) H Stowe (second defendant) J Pope (sol) (third defendant)