Johncorp Industries v Sussman [2001] NSWSC 519

New South Wales Supreme Court

CITATION : Johncorp Industries v Sussman [2001] NSWSC 519 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2748/01 HEARING DATE(S) : 29 & 30 May, 15 June 2001 JUDGMENT DATE : 20 June 2001

PARTIES : Johncorp Industries Pty Ltd (P) Alexander Sussman and Louise Roseanne Sussman (D) JUDGMENT OF : Austin J

COUNSEL : G Sirtes (P) V R W Gray (D) SOLICITORS : Alan Parszos & Associates (P) G J McKimm (D) CATCHWORDS : MORTGAGES - construction of 'all monies' clause - whether mortgage secured loan previously made to one mortgagor and others - whether mortgage secured guarantee by mortgagors and another of that previous loan LEGISLATION CITED : Real Property Act 1900 (NSW) ss 74K and 74O Fraser v Power [2000] NSWSC 257 CASES CITED : Malouf v O'Donohoe [2001] NSWSC 335 Richards v The Commercial Bank of Australia (1971) 18 FLR 95 DECISION : Declaration that the mortgage extends to the defendants' obligation under Deed of Guarantee with respect to the previous loan

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

WEDNESDAY 20 JUNE 2001

2748/01 JOHNCORP INDUSTRIES PTY LTD V ALEXANDER SUSSMAN AND LOUISE ROSEANNE SUSSMAN

JUDGMENT 1 HIS HONOUR: The principal relief sought in these proceedings is as follows:

'A declaration that the mortgage dated 13 August 2000 extends to sums loaned by the Plaintiff to Alexander Sussman under the Deed of Loan between the Plaintiff and (inter alia) the first-named male defendant dated 15 May 1998'. 2 The case arose out of an urgent ex parte application to extend a caveat lodged by the plaintiff in respect of the defendants' land at 21 Myrtle Street Botany. The caveat asserted an equitable interest by virtue of a loan agreement dated 15 May 1998. As indicated by the decision of Young J in Malouf v O'Donohoe [2001] NSWSC 335, there are difficulties in the path of a plaintiff who seeks an ex parte order to extend a caveat under s 74K of the Real Property Act 1900 (NSW). Following the approach taken by his Honour in that case, the plaintiff sought and obtained, instead, an ex parte order under s 74O of the Real Property Act to permit it to lodge a fresh caveat in exactly the same form as the caveat which was about to expire, on condition that the new caveat be withdrawn by the plaintiff by a stated time unless extended by further order. 3 When the matter came before me on the return date of the summons, it emerged that the issue in the proceedings was an issue of construction of the mortgage. With the consent of the parties, I heard the case on a final rather than an interlocutory basis, extending the initial ex parte order so that the new caveat is required to be withdrawn this afternoon unless I make a further order. 4 The question of construction is whether a mortgage granted on 13 August 2000 ('the Mortgage') secures the obligation of the first defendant, Mr Sussman, to repay a loan of $1,850,000 plus interest, made under a Deed of Loan dated 15 May 1998 ('the First Deed').