SHAWYER v. AMBERDAY P/L (IN LIQ) [2001] NSWSC 399

New South Wales Supreme Court

CITATION : SHAWYER v. AMBERDAY P/L (IN LIQ) [2001] NSWSC 399 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 2773/98 HEARING DATE(S) : 30/04/01; 1-2/05/01 JUDGMENT DATE : 18 May 2001

PARTIES : Gladys Shawyer - Plaintiff Amberday Pty Ltd - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : D. Robinson - Plaintiff J. Chippindall - Defendant SOLICITORS : Cunich Lawyers M.D. Nikolaidis & Co. CATCHWORDS : EQUITY - Equitable interests - competition of priorities between mortgage on RPAct form, unstamped, unregistered, undated, incomplete, incorrect in statement of amount lent, held by director of borrower who regarded herself as holding it for the lender but whose counsel told the Receiver before he accepted appointment that the assets were unencumbered, and the Receiver's lien for idemnity for expenses, remuneration and liabilities incurred in receivership to which he consented to be appointed by the Court - held that the unregistered mortgage was a mere equity and did not compete with the Receiver's equitable interest - alternatively the Receiver's claim was the better equity. Protected Estates Act 1983 (NSW) LEGISLATION CITED : Trustee Act 1925 (NSW) Conveyancing Act 1919 (NSW) Re Application of Central Commodities Services Pty Ltd & Ors (1984) 1 NSWLR 25 Re Ashpurton Estates Ltd [1983] Ch 110 Shirlaw v. Taylor (1991) 31 FCR 222 Weston & Anor v. Carling Constructions Pty Ltd (In prov liq) & Anor (2000) 35 ACSR 100 Hewett & Ors v. Court & Anor (1982) 149 CLR 639 Double Bay Newspapers Pty Ltd & Ors v. A.W. Holdings Pty Ltd & Ors (1997) 42 NSWLR 409 Westminster Bank Ltd v. Lee [1956] 1 Ch 7 CASES CITED : Cave v. Cave (1880) 15 ChD 637 Phillips v. Phillips (1861) 4 De GF&J 208, 45 ER 1164 C.I.B.C. Mortgages PLC v. Pitt [1994] 1 A.C. 200, Choudhri v. Palta & Ors [1994] 1 BCLC 184 JJ Leonard Properties Pty Ltd v. Leonard (WA) Pty Ltd) (In liq) (1988) 6 ACLC 247 Nunn v. Wily [2001] NSWSC 317 Ayerst v. C&K (Construction) Ltd [1976] AC 167 Commercial Banking Co. of Sydney Ltd v. George Hudson Pty Ltd (In Liq) (1973) 131 CLR 605 Australian and New Zealand Banking Group Ltd v. Widin [1990] 26 FCR 21 DECISION : See para 53. Summons is dismissed with costs.