Ilend Capital Pty Ltd v Kingdom Towers 2 Pty Ltd [2022] NSWSC 989

Supreme Court New South Wales

Medium Neutral Citation: Ilend Capital Pty Ltd v Kingdom Towers 2 Pty Ltd [2022] NSWSC 989 Hearing dates: 22 July 2022 Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [39]-[47] Catchwords: MORTGAGES AND SECURITIES – equitable charge – finance broker and customer – customer agrees to charge real property with payment of brokerage fees – broker assigns its "right title and interest" in its "debts" to assignee – whether assignee entitled to enforce charge against customer Legislation Cited: Personal Property Securities Act 2009 Cases Cited: Morley v Morley (1858) 53 ER 633 Native Bond Pty Ltd v Cant [2016] VSC 206 Texts Cited: Tyler, ELG, PW Young and CE Croft, Fisher & Lightwood's Law of Mortgage (LexisNexis Butterworths, 3rd Australian ed, 2014) Category: Principal judgment Parties: Ilend Capital Pty Limited (First Plaintiff) Loan Securities Capital Pty Limited (Second Plaintiff) Kingdom Towers 2 Pty Limited (Defendant) Representation: Counsel: C Stomo (Plaintiffs) S Fitzpatrick (Defendant)

Solicitors: Juris League Consultancy (Plaintiffs) Unsworth Legal (Defendant) File Number(s): 2022/158811 Publication restriction: Nil

Judgment – EX TEMPORE Revised from transcript and annotated; issued 26 July 2022 1. One of the claims made by the plaintiff in these proceedings is for recognition of an equitable security interest over land owned by the defendant. There has been a separate hearing before me as to whether the plaintiff is entitled to succeed on that claim. This judgment deals with that question. 2. The property in question is at Ingleburn Road in Leppington. The proceedings arise out of attempts by the defendant, Kingdom Towers 2 Pty Limited ("KT2"), to raise funds on the security of the property, apparently to redevelop it. For this purpose, KT2 retained the services of a company called Loan Securities Capital Pty Limited ("Loansec"). That company conducted a finance broking business. Loansec and KT2 entered into three mandate agreements pursuant to which Loansec was to obtain finance in specified amounts and for specified terms. In return Loansec was to receive fees. 3. The plaintiff, Ilend Capital Pty Limited ("Ilend"), is an assignee of Loansec. In these proceedings it seeks to recover unpaid fees pursuant to the mandate agreements. Ilend also seeks to enforce entitlements under the security agreements to a charge over the property as security for those outstanding fees. It is the claim for the charge which is the subject of the separate hearing with which I am dealing. The sole issue which arises is whether the assignment included that security interest.