New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd & 12 Ors [2007] NSWSC 474

New South Wales Supreme Court

CITATION : New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd & 12 Ors [2007] NSWSC 474 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 02/05/07

JUDGMENT DATE : 3 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 3 May 2007

DECISION : Parties to bring in Short Minutes of Order in accordance with reasons.

CATCHWORDS : MORTGAGE – Judicial sale – Conveyancing Act 1919 (NSW) s 103 – General equitable jurisdiction – Whether jurisdiction should be exercised – Whether second mortgagee should be compelled to discharge its security although debt not fully repaid – Minimal potential for gain to second mortgagees disproportionate to risk of loss to mortgagor and guarantor if forced mortgagee sale carried out – Held that exceptional circumstances existed so as to warrant directing judicial sale.

Real Property Act 1900 (NSW) Conveyancing Act 1919 (NSW) LEGISLATION CITED : Chancery Procedure Act (1842) Law of Property Act (1925) UK Property Law Act 1969 (WA)

King Investment Solutions v Hussain [2005] NSWSC 1076 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 Palk & Anor v Mortgage Services Funding Plc (1993) Ch 330 Sandgate Corp Pty Limited (in Liq) v Ionnou Nominees Pty Limited (2000) 22 WAR 172 CASES CITED : Woolley v Colman (1882) 21 Ch D 169 L Aitkin, "Mortgagor's Rights" (2007) 74 ALJ 226 Yarrangah Pty Limited v National Australia Bank Limited [1999] 9 BPR 17,061 Guardian Mortgages v Miller [2004] NSWSC 1236 Cheltenham & Gloucester Plc v Krausz [1997] 1 WLR 1558