NSW Caselaw
New South Wales Supreme Court
CITATION : Adelaide Bank Ltd v Property Builders Pty Ltd [2009] NSWSC 849
HEARING DATE(S) : 19 August 2009
JUDGMENT DATE : 7 September 2009
JUDGMENT OF : Davies J
DECISION : (1) The Plaintiff's Notice of Motion for summary judgment is dismissed. (2) The Plaintiff is to pay the Defendants' costs of the Notice of Motion.
CATCHWORDS : MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - remedies of the mortgagee - transfer of the mortgage - whether secured debt is also assigned - whether notice of assignment given to mortgagor. GUARANTEE AND INDEMNITY - action against surety - whether guarantee assigned with principal debt.
Conveyancing Act 1919 LEGISLATION CITED : Corporations Act 2001 Land Title Act 1994 Real Property Act 1900
Consolidated Trust v Naylor (1936) 55 CLR 423 French v Queensland Mines Pty Ltd [2006] VSCA 287 Hutchens v Deauville Investments Pty Ltd (1986) 68 ALR 367 CASES CITED : International Leasing Corp Ltd v Aiken [1967] 2 NSWR 427 McIntosh v Shashoua (1931) 46 CLR 494 Numeth v Reachcord Pty Ltd (1998) 9 BPR 16, 557 Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5
TEXTS CITED : O'Donovan and Phillips, The Modern Contract of Guarantee, 3rd ed (1996) LBC.
PARTIES : Adelaide Bank Ltd (Plaintiff) Property Builders Pty Ltd (Defendant)
FILE NUMBER(S) : SC 014452/08
COUNSEL : M J Cohen (Plaintiff & Third Defendant) J Stevenson SC & V Whittaker (First & Second Defendants)
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