Winau Australia Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612

Supreme Court New South Wales

Medium Neutral Citation: Winau Australia Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612 Hearing dates: 17 May 2021 Date of orders: 26 May 2021 Decision date: 26 May 2021 Jurisdiction: Equity Before: Rein J Decision: See [21] Catchwords: EQUITY — Equitable remedies — Injunctions — Property sold pursuant to a purported first mortgage on the mistaken assumption that the mortgage secured amounts advanced — Proceeds of the sale of the property paid into Court — Previous hearing in this Court on a separate question, the outcome of which was that the purported first mortgage did not secure the amounts advanced — Agreement reached by the parties prior to the hearing of the separate question identifying to whom the proceeds of the sale of the property were to be paid following the Court's judgment in respect of the separate question — In light of the Court's judgment on the separate question, pursuant to the parties' agreement, the amounts held in Court were to be paid to the former registered proprietor of the property — New claims made pursuant to a purported second mortgage — Purported second mortgagees sought an interlocutory injunction requiring the former registered proprietor to place the proceeds of sale of the property in a bank account and restraining the former registered proprietor from encumbering or making any withdrawal or transfer from that account — Held: The undertaking proffered by the Applicants on the Motion was ineffective — Consideration of the relative strengths and weaknesses of the parties respective claims and defences — Applicants did not have a strong case on estoppel and the Respondents had, at the very least, reasonable prospects on their case that the second mortgagees could not resile from their agreement in respect of the funds — Proceeds of sale of the property to be released to the former registered proprietor of the property, with a requirement that it give the Applicants on the Motion 14 days' notice of its intention to disburse those funds to its unitholders Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360 Harvey v Phillips (1956) 95 CLR 235 IceTV Pty Ltd v Ross & Ors [2007] NSWSC 1232 Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9 Lavery-Fenelon v Nicholas [2014] NSWCA 342 Patakas v Bevan [2017] NSWSC 1592 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 Seaton v Burnand [1900] AC 135 Varley v Varley [2006] NSWSC 1025 Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors [2020] NSWSC 434 Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors (No 2) [2020] NSWSC 586 Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2019] NSWSC 499 Texts Cited: Nil Category: Principal judgment Parties: Winau Aust Pty Ltd (First Plaintiff/Fourth Cross-Defendant) Shunjiyuan Investments Pty Ltd (Second Plaintiff/Fifth Cross-Defendant) 183 Eastwood Pty Ltd ATF Eastwood Unit Trust (Third Plaintiff/First Cross-Defendant) Junde Hong (Fourth Plaintiff)