JNN Investments Pty Ltd v Francis [2022] NSWSC 1063

Supreme Court New South Wales

Medium Neutral Citation: JNN Investments Pty Ltd v Francis [2022] NSWSC 1063 Hearing dates: 10, 11 and 18 November 2021; 27 April 2022, 9 June 2022 Date of orders: 12 August 2022 Decision date: 12 August 2022 Jurisdiction: Common Law Before: Davies J Decision: Parties to provide the Court with Short Minutes of Order to reflect reasons for judgment. Catchwords: MORTGAGES AND SECURITIES – mortgages – plaintiff and defendant tenants in common in equal shares – parties operating under joint venture agreement to develop quarry on land – agreement that parties would contribute equally to proposed business and share equally in profits – defendant unable to come up with funds to complete purchase of land – funds advanced by plaintiff and mortgage taken as security - enforceability of mortgage – whether representation that mortgage would only be enforced if the Australian Tax Office issued a notice to take land to satisfy tax liabilities owed by defendant – construction of terms of mortgage – where principal sum repayable on demand - whether mortgage enforceable prior to final repayment date - dispute over moneys said to be owing – whether money owed by plaintiff to defendant could be set-off against plaintiff's claim - whether equitable set-off – where Referee determined amounts owing Legislation Cited: Real Property Act 1900 (NSW) ss 57, 58, 60 Taxation Administration Act 1953 (Cth) Sch 1, s 260-5 Cases Cited: AGC (Advances) Ltd v Tweed Canal Estates Pty Ltd (1988) 4 BPR 9404 Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 481; [1984] HCA 10 Clare Morris Ltd v Hunter BNZ Finance Ltd (1988) 4 BPR 9609 Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd & Ors [2013] NSWSC 1184 Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476 Federal Commissioner of Taxation v Park [2012] 205 FCR 1; [2012] FCAFC 122 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Suncorp-Metway Limited v Nam Property Holdings Pty Limited [2010] NSWSC 1078; (2010) 16 BPR 30,859 Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th Edition 2014 Lexis Nexis) Category: Principal judgment Parties: JNN Investments Pty Ltd (Plaintiff) George Peter Francis (Defendant) Representation: Counsel: H Altan & M Isaac (Plaintiff) C Cassimatis (Defendant)