Walton v Blann [2003] NSWSC 897

New South Wales Supreme Court

CITATION : Walton v Blann [2003] NSWSC 897 HEARING DATE(S) : 19 September 2003 JUDGMENT DATE : 2 October 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Summons dismissed

CATCHWORDS : MORTGAGES - priority - contract for sale of land provided for vendor finance secured by second mortgage - no requirement by purchaser for expected first mortgage on settlment - vendor's mortgage back registered as first mortgage - purchaser subsequently required finance from another lender to be secured on the property - whether vendor first mortgagee required to give priority to this mortgage over mortgage back LEGISLATION CITED : Real Property Act 1900 s56A PARTIES : Gillian Mary Walton (Plaintiff) Robert Frederick Blann (Defendant) FILE NUMBER(S) : SC 4869 of 2003 COUNSEL : Mr V R Gray (Plaintiff) Mr BA Coles QC with him Mr P B Walsh (Defendant) SOLICITORS : Abbott Tout (Plaintiff) Kosmin & Associates (Defendant)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

THURSDAY 2 OCTOBER 2003.

4869/03 GILLIAN MARY WALTON V ROBERT FREDERICK BLANN JUDGMENT Outline 1 The question is whether the defendant is bound to execute documents which would postpone his mortgage over property 9 Coolong Road, Vaucluse, so as to give priority to a mortgage with National Australia Bank securing a principal sum of up to $7 million. Facts 2 By contract of sale dated 16 August 2002, the plaintiff Mrs Walton agreed to purchase the property from the defendant, Mr Blann, for a sum of $14,725,000.00. Special Condition 50 of the contract was as follows: Vendor Finance 50.1 On completion the Vendor shall lend to the Purchaser the sum of $5,225,000.00 on the terms and conditions set out in the copy of the Mortgage attached hereto.