Globe Capital Administration Pty Ltd v Cecil Developments Pty Ltd atf the Cecil Developments Unit Trust (Receivers and Managers appointed) [2023] NSWSC 574

Supreme Court New South Wales

Medium Neutral Citation: Globe Capital Administration Pty Ltd v Cecil Developments Pty Ltd atf the Cecil Developments Unit Trust (Receivers and Managers appointed) [2023] NSWSC 574 Hearing dates: 15 May 2023 Date of orders: 31 May 2023 Decision date: 31 May 2023 Jurisdiction: Equity Before: Slattery J Decision: Modified orders for preliminary discovery made. Liberty granted to the applicant to further amend its Amended Summons to seek judicial sale of the mortgaged property. Costs of the application reserved. Catchwords: CIVIL PROCEDURE – preliminary discovery to identify potential cause of action – reasonable inquiries – Uniform Civil Procedure Rules, r 5.3 – applicant claims to be an unregistered second mortgagee of certain land under development – applicant seeks preliminary discovery of information from the first mortgagee, principally concerning the amount outstanding on the first mortgage and the valuation of the mortgaged property – the registered proprietor is in default to the first mortgagee and under its loan arrangements with the applicant – the applicant's requests for information from the first mortgagee about the first mortgagee's dealings with the mortgagor have gone unanswered – whether the applicant's claim for preliminary discovery is available – whether the applicant's claim for preliminary discovery is so wide as to be oppressive. MORTGAGES – application for judicial sale by an applicant who claims to be an unregisterd second mortgagee - mortgagor in default on first and second mortgages – second mortgagee seeks information from the first mortgagee to facilitate the sale of the mortgaged property - the Court notes that the remedy of judicial sale may be available to the applicant and offers the applicant an opportunity to amend to seek judicial sale. Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58 Conveyancing Act 1919, ss 109, 115(2) Corporations Act 2001 (Cth), ss 420, 420A, 1324 Insolvency Practice Rules (Corporations) (Cth) 2016, r 70-10 Uniform Civil Procedure Rules 2005, r 5.3 Cases Cited: Artistic Builders Proprietor Limited v Elliot & Tuthill (Mortgages) Pty Ltd [2002] NSWSC Australian Mutual Provident Society v Geo Myers & Co Ltd (1932) 47 CLR 65 Bank of Western Australia v Abdul [2012] VSC 222 Bayblu Holdings Pty Limited v Capital Finance Australia Limited [2011] NSWCA 39 BCG Securities (Australia) Pty Ltd v Shillington (No. 2) [2022] SWSC 807 and Gooley & Ors v Breda Pty Ltd [2017] NSWSC 1505 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 Hearne v Street (2008) 235 CLR 125 King Investment Solutions v Hussain (2005) 64 NSWLR 441 Morton v Nylex Ltd [2007] NSWSC 562 O'Connor v O'Connor [2018] NSWCA 214 Sood v Christianos [2008] NSWSC 1087 St George Bank Limited v Rabo Australia Ltd (2004) 211 ALR 147 State Bank of New South Wales v Chia (2000) 50 NSWLR 587 Steffen v ANZ Banking Group [2009] NSWSC 666 Tabcorp Holdings Ltd v Entain Group Pty Ltd [2023] NSWSC 220 The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268 Category: Procedural rulings Parties: Applicant: Globe Capital Administration Pty Ltd ACN 608 004 299 First Respondent: Cecil Developments Pty Limited atf the Cecil Developments Unit Trust (Receivers and Managers appointed) ACN 619 221 644 Second Respondent: Gemi 168 Pty Ltd ACN 638 719 641 Third Respondent: David Hurst in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd Fourth Respondent: David Sampson in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd Representation: Counsel: Applicant: M. Thompson Respondents: H. Sommerville; will