Capita Mortgage Pty Ltd v Henderson [2021] NSWSC 1689

Supreme Court New South Wales

Medium Neutral Citation: Capita Mortgage Pty Ltd v Henderson [2021] NSWSC 1689 Hearing dates: 30 November 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Common Law Before: Fagan J Decision: (1) Judgment for the plaintiff against the defendant in the sum of $277,525.71, together with interest on that amount at the rate prescribed under the Uniform Civil Procedure Rules calculated from 1 December 2021. (2) Declare that the plaintiff holds an equitable mortgage over the whole of the land comprised in Lot 1 Deposited Plan 203488 and in Lot 3 Deposited Plan 562399, both parcels being at Broken Hill, Parish of Picton, County of Yancowinna. (3) The cross-claim is dismissed. (4) Direct that the plaintiff file and serve within 21 days a current valuation of the land at Broken Hill referred to in the declaration of the Court made this day, such valuation to be sworn or affirmed by an appropriately qualified land valuer. (5) Upon the valuation being filed and served in accordance with the direction in order (3), the plaintiff may apply for the proceedings to be relisted for the purpose of the parties being heard as to further final orders with respect to judicial sale. Catchwords: MORTGAGES — remedies of the mortgagee — agreement to grant mortgage of Real Property Act 1900 land — jurisdiction of court to make order for sale EQUITY — unconscionable conduct — bridging loan Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) National Credit Code Real Property Act 1900 (NSW) Cases Cited: Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 Guardian Mortgages v Miller [2004] NSWSC 1236 Jams 2 Pty Ltd v Stubbings [2020] VSCA 200 King Investment Solutions v Hussain [2005] NSWSC 1076 McLeod v McLeod [2019] NSWSC 804 National Australia Bank Ltd v Clowes [2013] NSWCA 179 Perpetual Trustees Victoria Limited v English [2010] NSWCA 32 Provident Capital Ltd v Printy [2008] NSWCA 131 PT Limited v Maradona Pty Limited (1992) 25 NSWLR 643 Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240 Small v Tomassetti [2001] NSWSC 1112 Texts Cited: Fisher & Lightwood's Law of Mortgage (3rd Ed, 2013) Category: Principal judgment Parties: Capita Mortgage Pty Ltd (Plaintiff) Douglas McGreager Henderson (Defendant) Representation: Nil File Number(s): 2018/351337 Publication restriction: Nil