Marcel Esber v Kimberley Securities Limited [2009] NSWSC 1422

New South Wales Supreme Court

CITATION : Marcel Esber v Kimberley Securities Limited [2009] NSWSC 1422 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 3 & 7 December 2009

JUDGMENT DATE : 16 December 2009

JUDGMENT OF : Hammerschlag J

DECISION : Judgment for the first and third plaintiffs against the second defendant [see paragraphs 63-64 of the judgment]

CATCHWORDS : REAL PROPERTY – Real Property Act 1900 (NSW), s 58(3)– construction – whether reference to subsequent mortgages is restricted to subsequent registered mortgages – whether "in payment of subsequent mortgages" means in payment of moneys actually owing – EQUITY – nature of obligations of mortgagee holding a surplus after property sold –second mortgagee held surplus after mortgaged property was sold – unregistered third mortgagee claimed entitlement to surplus but in fact was owed nothing – mortgagors too claimed entitlement to surplus – second mortgagee paid surplus to third mortgagee under indemnity – held payment was not in payment of a subsequent mortgage and third mortgagee had no equitable interest in the surplus – mortgagors entitled to equitable compensation from the second mortgagee

Real Property Act 1900 (NSW) Duties Act 1997 (NSW) LEGISLATION CITED : Transfer of Land Act 1954 (Vic) Property Law Act 1974 – 1976 Conveyancing Act 1919 (NSW)

CATEGORY : Principal judgment

Re S & D International Pty Ltd (in liq) [2009] VSC 225 Ex parte Australian Co-operative Development Society Limited (In liquidation) [1978] Qd.R. 395 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 Fraser v Australian Securities & Investment Commission, In the Matter of Lanepoint Enterprises Pty Ltd [2007] FCAFC 85 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Barry v Heider (1914) 19 CLR 197 Australian Alliance Assurance Co Ltd v Attorney General (Qld) [1916] St R Qd 135 CASES CITED : Director of Public Prosecutions v Turner [1974] AC 357 Re Murrell; Ex parte Official Trustee in Bankruptcy (1984) 57 ALR 85 Keech v Sandford (1926) Sel Cas t King 61 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 Boardman v Phipps [1967] 2 AC 46 Maguire v Makaronis (1996) 188 CLR 449 Adams v Bank of New South Wales [1984] 1 NSWLR 285 Bofinger v Kingsway Group Limited [2009] HCA 44 Charles v Jones (1887) 35 Ch D 544