ESANDA FINANCE CORPORATION LIMITED v TONG AND TONG [1996] NSWCA 173

ESANDA FINANCE CORPORATION LIMITED vy TONG AND TONG

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 21 May 1996

[1996] NSWCA 173

Priestley JA. This matter was before me on Monday of last week, when I heard quite full argument in support of and in opposition to the application by Esanda for orders staying certain orders made by Grove J on the 19th of last month. I then said I would deliver judgment on the matter this morning, having first been informed of the situation concerning certain parties to the proceedings before Grove J who were not parties to the stay application.

Stated very shortly, the case before Grove J concerned claims by Esanda for recovery of money lent by Esanda and enforcement of securities taken in connection with the lending.

Two parties, who I will simply call the Tongs, had guaranteed money lent to other parties and that guarantee had been secured by a mortgage on real property to Esanda. The Tongs sought orders before Grove J setting aside the mortgage, which his Honour granted. His Honour granted relief to Esanda against various of the other parties.

The orders that he made in relation to the Tongs were a declaration that the mortgage given by the Tongs as security for the guarantee to Esandaof the loans to other parties was unjust; an order that Esanda be restrained from enforcing the mortgage against the Tongs; an order that Esanda deliver up the certificate of title, the mortgage, and a discharge of the mortgage duly executed to the Tongs; an order that Esanda pay the amount equivalent to the registration fee in respect of the discharge of the mortgage; and an order granting liberty to the Tongs to apply for ancillary orders necessary to terminate the operation and effect of the mortgage.

The last three orders that I have mentioned became orders 3, 4 and 5 in the minutes of orders that were prepared and made after Grove J had delivered his judgment in the overall proceedings. Other orders were made against other parties concerning claims and cross-claims that had arisen out of the basic transaction of loan.