Work Childcare Holdings Pty Ltd (In Liq) & Anor v Phillip Redmond Dwyer by his tutor Patricia Alice Clark [2006] NSWSC 1443

New South Wales Supreme Court

CITATION : Work Childcare Holdings Pty Ltd (In Liq) & Anor v Phillip Redmond Dwyer by his tutor Patricia Alice Clark [2006] NSWSC 1443

HEARING DATE(S) : 31/10/06

JUDGMENT DATE : 1 November 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 11/01/2006

DECISION : Order that the originating process be dismissed.; Direct that any further submissions on the question of costs are to be made in writing and be forwarded to my associate by 5.00 pm tomorrow.

CATCHWORDS : MORTGAGES – Mortgages and charges generally – Priority – First plaintiff, a company now in liquidation, is registered proprietor of land in New South Wales – Second plaintiff is liquidator of first plaintiff – Defendant holds registered mortgage over land – Liquidator contracted to sell land – Application by liquidator that defendant be required to provide discharge of mortgage – Whether liquidator entitled to equitable lien over land in priority to defendant's interest as registered mortgagee to secure remuneration and expenses in caring for, preserving and realising land –Whether work done by liquidator for incontrovertible benefit of registered mortgagee – Application dismissed.

LEGISLATION CITED : Real Property Act 1900 (NSW) Conveyancing Act 1919 (NSW)

Shirlaw v Taylor (1991) 31 FCR 222 Monks v Poynice Pty Ltd (1987) 8 NSWLR 662 CASES CITED : Dean-Willcocks & Anor v Nothintoohard Pty Ltd (in liq) & Ors (2005) 53 ACSR 587 Re Conlan [2001] WASC 230 Project Research Pty Ltd v Permanent Trustee of Australia Limited (1990) 5 BPR 11,225