Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd (No 3) [2023] NSWSC 304

Supreme Court New South Wales

Medium Neutral Citation: Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd (No 3) [2023] NSWSC 304 Hearing dates: 24 February 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Equity Before: Robb J Decision: The orders of the Court are: (1) Declaration that any sum payable by the first defendant to the fifth defendant, being her entitlement to a distribution as a Registered Unit Holder of the Antalija Unit Trust, is charged for payment by the fifth defendant in her capacity as the trustee of the Susan Price-Arcidiacono Discretionary Trust to the third plaintiff of all monies due by the fifth defendant in that capacity as Borrower under the Deed of Loan made on 15 March 2018 between the third plaintiff, the fifth defendant in various capacities, and other parties. (2) Order that the first defendant pay any sum payable to the fifth defendant, being her entitlement to a distribution as a Registered Unit Holder of the Antalija Unit Trust, to the third plaintiff. (3) Order the fifth defendant to pay the third plaintiff's costs of the claim in the statement of claim, as amended, insofar as the costs relate to the claim that has led to the Court making these orders. (4) Grant leave to the parties on seven days' notice by arrangement with the Associate to Robb J to apply to the Court for any orders necessary or desirable to give effect to these reasons for judgment, including any further or varied order consistent with these reasons. Catchwords: CONTRACTS — construction — interpretation — whether terms of unit trust deed gave registered unit holder equitable interest in the whole of the property of the trust, including land — where terms of deed of loan entered into by registered unit holder created charge over unit holder's equitable interest in land in favour of lender Legislation Cited: Real Property Act 1900 (NSW), s 74F(1) Cases Cited: Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90Council Club Pty Ltd v Paradise Island Pty Ltd [2020] WASC 218 CPT Custodian Pty Ltd v Commissioner of State Revenue; Commissioner of State Revenue v Karingal 2 Holdings Pty Ltd (2005) 224 CLR 98; [2005] HCA 53 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Jonsue Investments Pty Ltd v Balweb Pty Ltd [2013] NSWSC 325; (2013) 9 ASTLR 460 Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd [2022] NSWSC 519 Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd (No 2) [2023] NSWSC 141 Texts Cited: Heydon J.D, Heydon on Contract: The General Part (2019, Thomson Reuters) Category: Principal judgment Parties: Reliance Financial Services Pty Ltd (First Plaintiff) Nancy Morvillo (Second Plaintiff) Marginata Securities Pty Ltd (Third Plaintiff) Accolade Advisory Pty Ltd (Fourth Plaintiff) Antalija Developments No 4 Pty Ltd (First Defendant) Antalija Constructions Pty Ltd (Second Defendant) Dennis Katavic (Third Defendant) Jocelyn Katavic (Fourth Defendant) Sue Price-Arcidiacono (Fifth Defendant) Representation: Counsel: D Allen (Plaintiffs) WDB Buckland (Fifth Defendant)