Circuit Finance Pty Limted v Wills [2006] NSWSC 35

New South Wales Supreme Court

CITATION : Circuit Finance Pty Limted v Wills [2006] NSWSC 35

HEARING DATE(S) : 31 January 2006

JUDGMENT DATE : 9 February 2006

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 1. I order that the summons be dismissed. 2. I make a declaration and order as sought in prayers 1 and 2 in the cross-summons. 3. I stand the proceedings over to a date to be fixed by arrangement with my Associate for submissions as to costs.

CATCHWORDS : Real property. - Interests in land. - Equitable charges. - Mortgagee sale. - Payment of surplus into Court. - Competing claims for such surplus. - Priority between adverse equitable interests. - Charges created on same day. - Mortgage pursuant to one charge was subsequently registered. - Express agreement between parties that such registration shall not alter the rights (including priority) of the parties. - Effect of such registration upon priority between respective interests.

Real Property Act 1900 LEGISLATION CITED : Supreme Court Rules 1970 Trustee Act 1925

Commonwealth Bank of Australia v Duggan [2003] FCAFC 64 CASES CITED : Duggan v Thomas [2002] FCA 830 Elderly Citizens Homes of South Australia Inc. v Balnaves (1998) 72 SASR 210 Rice v Rice (1853) 2 Drew 73 at 78; 61 ER 646

Circuit Finance Pty Limited (Plaintiff) PARTIES : Kenneth John Wills (First Defendant) Margaret Maria Wills (Second Defendant)

FILE NUMBER(S) : SC 3943 of 2005

COUNSEL : J-P. Redmond (Plaintiff) S. Balafoutis (Defendants)

SOLICITORS : Leonard Deane Lawyers (Plaintiff) Wight & Strickland (Defendants)