NSW Caselaw
New South Wales Supreme Court
CITATION : Sood v Christianos [2008] NSWSC 1087
HEARING DATE(S) : 4, 5, 16, 18 September 2008 JURISDICTION : Equity Division Duty List
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 19 September 2008
DECISION : Plaintiff authorised to sell the property the subject of the application under Court supervision in accordance with draft Contract.
CATCHWORDS : REAL PROPERTY – MORTGAGES – where memorandum grants power of attorney to mortgagee to sell – whether contractual power of sale - REAL PROPERTY – MORTGAGES – EQUITABLE MORTGAGES – power of sale – where relevant land subject to a registered first mortgage, two unregistered mortgages and an unregistered charge – whether equitable mortgage contains implied power of sale – power of sale pursuant to (NSW) Conveyancing Act 1919, s 109 – where mortgagee holds mortgage in registrable form – whether judicial sale is standard remedy for equitable charge or remedy of last resort – whether mortgagee should register mortgage and exercise power of sale pursuant to (NSW) Real Property Act 1900, s 58, rather than seeking judicial sale - REAL PROPERTY – MORTGAGES – EQUITABLE MORTGAGES – power of sale – manner of sale – where second mortgagee in possession of draft contract of sale with a purchase price sufficient to discharge the first mortgage totally and the second mortgage partially – whether sale should be by auction – considerations relevant to value – which party should have conduct of the sale
LEGISLATION CITED : (NSW) Conveyancing Act 1919, ss 109, 111 (NSW) Real Property Act 1900, s 58
CATEGORY : Principal judgment
King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 Mango Media Pty Ltd v Mertes [2006] NSWSC 1460 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 CASES CITED : Matthews v Goodday (1861) 31 LJ Ch 282 New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd [2007] NSWSC 474 Palk v Mortgage Services Funding plc [1993] Ch 330 Yarrangah Pty Ltd v National Australia Bank Ltd [1999] NSWSC 97; (1999) 9 BPR 17,601
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