NSW Caselaw
New South Wales Supreme Court
CITATION : Across Australia Finance Pty Ltd v Kalls & Ors [2008] NSWSC 783
HEARING DATE(S) : 18/07/2008
JUDGMENT DATE : 4 August 2008
JURISDICTION : Equity
JUDGMENT OF : Bryson AJ at 1
DECISION : (1) The proceedings are reserved for further consideration. (2) Liberty to apply.
CATCHWORDS : MORTGAGES - marshalling - Kalls mortgaged properties in Rose Bay and Pyrmont to NAB on two "all moneys" mortgages - Kalls gave 2M over Rose Bay to Mr Hill and 3M to Across Australia - Kalls gave 2M over Pyrmont to Across Australia and Hill had no security over Pyrmont - 2MM and 3M unregistered and lacked effective power of sale - Across Australia sued for judicial sale and as empowered by the Court sold Rose Bay and NAB took all the proceeds, leaving Hill without effective security - Across Australia then as empowered by Court sold Pyrmont and NAB took most of the proceeds and was then thus paid - balance of proceeds of Pyrmont held by Across Australia's solicitor under undertaking to comply with Court's directions - HELD Mr Hill entitled to marshall against balance proceeds of Pyrmont - apportionment as if NAB had taken same percentage (93%) of proceeds of each security - 7% of proceeds of Pyrmont available for Mr Hill - Consideration of marshalling, apportionment, claims by Across Australia for costs of judicial sale proceedings. Parties to make calculations to give effect to decision.
LEGISLATION CITED : Conveyancing Act 1919 s 112
Aldrich v Cooper (1803) 32 ER 402 Double Bay Newspapers Pty Ltd v A.W. Holdings Pty Ltd (1996) 42 NSWLR 409 Chase Corporation (Australia) Pty Ltd v North Sydney Mercantile Co. Ltd (1994) 35 NSWLR 1 Clifton v Burt (1720) 1 Peere Williams 678 Commonwealth Trading Bank v Colonial Mutual CASES CITED : Life Assurance Society Ltd (1970) Tas SR 120 Finance Corp of Australia Ltd v Bentley (1991) 5 BPR 11833 Lanoy v Duke of Atholl 2 Atk. 446 Miles v Official Receiver in Bankruptcy (1963) 109 CLR 501 Mir Bros Projects Pty Ltd v Lyons [1977] 2 NSWLR 192 National Bank of New Zealand v Caldesia Promotions Ltd [1996] 3 NZLR 467 Webb v Smith (1885) 30 Ch D 192
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