Hill Foundation Pty Ltd v 131 MVR Pty Ltd [2022] NSWSC 520

Supreme Court New South Wales

Medium Neutral Citation: Hill Foundation Pty Ltd v 131 MVR Pty Ltd [2022] NSWSC 520 Hearing dates: 23 March 2022 Date of orders: 3 May 2022 Decision date: 03 May 2022 Jurisdiction: Common Law Before: Macfarlan JA Decision: (1) Order Hill Foundation within 7 days to calculate the appropriate amount of the judgment to be entered in its favour, calculated in accordance with this judgment, and advise the first defendant and the Court of that amount. (2) Order that Ms Walker be given leave to respond within a further 3 working days if she wishes to. Catchwords: GUARANTEE AND INDEMNITY — construction of contract of guarantee — creditor's claim was a claim in debt for a liquidated sum as distinct from a claim for damages for breach of contract — distinction important as principles of mitigation only apply to the latter MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — power of sale — no duty to sell at any particular time or at all CIVIL PROCEDURE — Court of Appeal — costs orders — interest component of a judgment is included when determining whether a judgment meets the $500,000 threshold in UCPR r 43.34 Legislation Cited: Civil Procedure Act 2005 (NSW), s 100(1) Contracts Review Act 1980 (NSW), s 7 Uniform Civil Procedure Rules 2005 (NSW), r 42.34 Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: Commonwealth Bank of Australia v Lee (1996) 22 ACSR 574 Edwards v Australian Securities and Investments Commission (2009) 235 FLR 207; [2009] NSWCA 424 Mailman v Challenge Bank Ltd (1991) 5 BPR 11,721 Maund v Crown in right of the State New South Wales [2013] NSWCA 226 Re Castleplex Pty Ltd (in liq) [2010] QCA 59 Starrs v Retravision (WA) Ltd [2012] WASCA 67 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Westpac Banking Corporation v Kingsland (1991) 26 NSWLR 700 Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 151 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) J.W. Carter, Contract Law in Australia (7th ed, 2018, LexisNexis Butterworths) J O'Donovan and J Phillips, Modern Contract of Guarantee (Looseleaf ed 2020, Thomson Reuters) Category: Principal judgment Parties: Hill Foundation Pty Ltd (ACN 105 270 611) (Plaintiff) 131 MVR Pty Ltd (ACN 140 772 050) (First Defendant) Karen Walker (Second Defendant) Representation: Counsel: A Rogers / P Lin (Plaintiff) P J Beazley (sol) (Second Defendant)