CORINDI BLUEBERRY GROWERS PTY LTD (RECEIVER AND MANAGER APPOINTED) AND ANOR v SHEPHARD AND ORS [1995] NSWCA 97

CORINDI BLUEBERRY GROWERS PTY LID (RECEIVER AND MANAGER APPOINTED) v SHEPHARD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 15 May 1995, 15 May 1995 [1995] NSWCA 97

EQUITABLE INTERESTS — PRIORITIES

In 1984 the first appellant, a registered proprietor of land, contracted to sell it to the first respondents. The purchasers paid the bulk of the purchase money and were let into possession but did not complete. In 1991 the registered proprietor granted an equitable charge to the second respondent which was registered with the Australian Securities Commission but not under the Real Property Act. In 1993 the chargee appointed receivers and managers of the assets and undertaking of the first appellant. The trial judge held that the purchasers' were entitled to priority over the charge. On appeal Held: The trial judge was correct.

Handley JA This is an appeal by the registered proprietor of the subject land and a financier which holds an equitable charge over its assets and undertaking from a judgment of Young J who held that the equitable interest of the first respondents as purchasers under an uncompleted contract had priority over the charge. On 29 June 1984 the proprietor contracted to sell the land to the first respondents in subdivision for $13,000. In due course the subdivision was registered and the proprietor acquired a good title to the subject lots. The respondents were let into possession although the purchase price had not yet been paid in full. There is no dispute that only $1,400 remains outstanding, although this is subject to adjustments for outgoings.

In 1991 the vendor executed an equitable charge over its assets and undertaking which was registered with the Australian Securities Commission. The chargee has no registered title to the subject land under the Real Property Act.