Cuzeno RVM Pty Ltd v Overton Investments Pty Ltd [2002] NSWSC 88

New South Wales Supreme Court

CITATION : Cuzeno RVM Pty Ltd v Overton Investments Pty Ltd [2002] NSWSC 88 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4945/01 HEARING DATE(S) : 11 and 12 February 2002 JUDGMENT DATE : 26 February 2002

PARTIES : Cuzeno RVM Pty Ltd - Plaintiff Overton Investments Pty Ltd - Defendant JUDGMENT OF : Palmer J

COUNSEL : R.G. Forster SC with T.G.R. Parker - Plaintiff J.T. Gleeson SC with A. McInerney - Defendant SOLICITORS : Michie, Shehadie & Co. - Plaintiff Gadens Lawyers - Defendant CATCHWORDS : CONTRACT - MORTGAGE - "ALL MONIES CLAUSE" - CONSTRUCTION - "All monies clause" in printed terms incorporated in a mortgage by reference must be construed having regard to the context in which the mortgage transaction occurs and by reference to the commercial purpose of the transaction which the "all monies clause is designed to serve - where a mortgage requires repayment of the whole of the mortgage debt on a specified date the general terms of an "all monies clause" which secures all contingent liabilities of the mortgagor to the mortgagee must be construed as securing only those liabilities which are contingent as at the date of execution of the mortgage but which have crystallised as actual liabilities by the date stipulated for payment. - MORTGAGE - LEASE - CONSENT OF MORTGAGEE - In the absence of contractual provision, a mortgagee cannot be compelled to give consent to a surrender of a lease of the mortgaged property or to the grant of a new lease of the mortgaged property - a mortgagee may impose as a condition of its consent any terms it likes as long as those terms do not constitute a clog on the equity of redemption. - BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 - Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 CASES CITED : - Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13,146 - Fountain v Bank of America National Trust & Savings Association (NSWCA 23 October 1992) - Smith v ANZ Banking Group Ltd (NSWCA, 5 February 1996) - Thanes Pty Ltd v Custom Credit Corporation Ltd (1985) 5 BPR 11,955 DECISION : Declarations accordingly.