DTT Group Pty Ltd v The Trust Company (PTAL) Ltd [2022] NSWSC 1554

Supreme Court New South Wales

Medium Neutral Citation: DTT Group Pty Ltd v The Trust Company (PTAL) Ltd [2022] NSWSC 1554 Hearing dates: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Equity - Duty List Before: Meek J Decision: Refuse application to restrain mortgagee from exercising power of sale. Catchwords: LAND LAW — Urgent ex parte application to restrain mortgagee from exercising power of sale — Plaintiff (mortgagor) approaches Duty Judge within hours of a scheduled auction due to commence — Sum of $12M plus owing under mortgage — Following issue of a s 57(2)(b) Real Property Act 1900 (NSW) notice the parties enter into Deed of Forbearance allowing Plaintiff further time to pay secured moneys on terms — Subsequent alleged variation of the Deed permitting cancelling of auction on payment of arrears of approximately $593,000 — Mortgagee claims default by Plaintiff under Deed and requires payment of total facility amount — Plaintiff says Notice of Default is invalid and/or that mortgagee engaged in misleading or deceptive conduct causing it to lose potential other investors/funders to enable it to pay arrears — Plaintiff unable to pay arrears of $593,000 to the mortgagee or into Court — Application refused Legislation Cited: Real Property Act 1900 (NSW), s 57(2)(b) Cases Cited: E & P Developers Pty Ltd v DJ Capital Solutions Ltd [2005] NSWSC 1110; (2005) 12 BPR 23,193 Harvey v McWatters (1948) 49 SR (NSW) 173 Starceavich v Swart & Associates Pty Ltd [2006] NSWSC 960; (2006) 12 BPR 23,639 Category: Procedural rulings Parties: DTT Group Pty Ltd (Plaintiff) The Trust Company (PTAL) Ltd (Defendant) Representation: Counsel: G D McDonald (Plaintiff) A G Martin (Defendant) Solicitors: Yazbeck Law (Plaintiff) Summer Lawyers (Defendant) File Number(s): 2022/337398