Perpetual Ltd; Application of Caveat Lenders [2009] NSWSC 776

New South Wales Supreme Court

CITATION : Perpetual Ltd; Application of Caveat Lenders [2009] NSWSC 776

HEARING DATE(S) : 29 July 2009

JUDGMENT DATE : 29 July 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 29 July 2009

DECISION : Order in terms of para 1 of the notice of motion. Order may be entered forthwith.

CATCHWORDS : No question of principle

CASES CITED : Guardian Mortgages v Miller [2004] NSWSC 1236

PARTIES : Perpetual Ltd; Application of Caveat Lenders Pty Ltd

FILE NUMBER(S) : SC 3278/09

COUNSEL : Applicant: Director of applicant in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

WHITE J

Wednesday, 29 July 2009

3278/09 Perpetual Limited; Application of Caveat Lenders Pty Ltd JUDGMENT 1 HIS HONOUR: The applicant, Caveat Lenders Pty Ltd, seeks an order that the amount of surplus funds paid into court by Perpetual Trustee Limited be paid out to it. It holds an unregistered mortgage over the property which was sold by Perpetual Trustee. The mortgagor, through its director, has indicated its consent to the payment out. Caveats were lodged by other companies, namely, Burrawong Investments Pty Ltd and SMS CF Pty Ltd, through their solicitors. Those companies have also indicated their consent to the moneys which have been paid into court being paid out to the applicant. 2 As all the parties who might have an interest in the funds paid into court consent to the present application, I make an order in accordance with paragraph 1 of the Notice of Motion filed on 14 July 2009. 3 I should add that the amount to be paid out is substantially less than the principal sum owed to the applicant. That is, the payments the borrower has made (which have been applied to interest) together with the moneys paid into court which are to be paid out to the applicant, are less than the amount of the principal debt. 4 No question, therefore, arises as to the enforceability of provisions of the mortgage documentation in relation to interest rates, nor as to a clause purporting to provide for damages for late payment. I should note, however, that the mortgage entered into on 17 August 2006 is in a form which is all too familiar to the court, and appears to contain a provision to the same effect as the provision held by Windeyer J in Guardian Mortgages v Miller [2004] NSWSC 1236 to be void as a penalty. However, those matters are not material to the present relief claimed. 5 As I have said, I have made the order in terms of paragraph 1 of the notice of motion. This order may be entered forthwith.