Zhong v Lanbo Constructions Pty Ltd; Lanbo Constructions Pty Ltd v Zhong [2023] NSWSC 440

Supreme Court New South Wales

Medium Neutral Citation: Zhong v Lanbo Constructions Pty Ltd; Lanbo Constructions Pty Ltd v Zhong [2023] NSWSC 440 Hearing dates: 30 March 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Equity Before: Robb J Decision: The orders of the Court are: (1) Order that Sanchun Zhong and Lingwan Jin (the Applicants), be joined as parties to these proceedings. (2) Order that Lanbo Constructions Pty Ltd be joined as a party to these proceedings. (3) Order that the notice of motion filed by Lanbo Constructions Pty Ltd on 8 November 2022 otherwise be dismissed. (4) Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 55.11(1) that the sum of $208,591.25 which was paid into court by the plaintiff on or about 8 September 2022, together with any interest accumulated on that sum, be paid out of court to the Applicants. (5) Order Lanbo Constructions Pty Ltd to pay the costs of the Applicants in relation to the applications for the money to be paid out of court. Catchwords: MORTGAGES AND SECURITIES — priorities — where first-ranking mortgagee exercised power of sale and paid balance of funds into court — where second and third-ranking mortgagees each applied for payment out of court pursuant to r 55.11(1), Uniform Civil Procedure Rules (NSW) — where second-ranked mortgagees also judgment creditors, and question of merger raised — whether obligation to repay loan granted by second-ranked mortgagee to mortgagor extinguished by exercise of option to purchase real property under collateral deed of guarantee and indemnity Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Trustee Act 1925 (NSW), s 95 Uniform Civil Procedure Rules 2005 (NSW), rr 55.9, 55.11(1) Cases Cited: Elders Trustees & Executor Co Ltd v Eagle Star Nominees Ltd (1984) 4 BPR 9205 Texts Cited: ELG Tyler, PW Young and CE Croft, Fisher and Lightwood's Law of Mortgage (3rd Aust ed, 2013, LexisNexis Butterworths) Category: Principal judgment Parties: Proceedings 2022/268709-002 Sanchun Zhong (First Applicant) Lingwan Jin (Second Applicant) Overseas Union Finance (Aust) Pty Ltd (First Respondent) Lanbo Constructions Pty Ltd (Second Respondent)