Commonwealth Bank of Australia v Christine Maree Delacy [2010] NSWSC 1449

New South Wales Supreme Court

CITATION : Commonwealth Bank of Australia v Christine Maree Delacy [2010] NSWSC 1449

HEARING DATE(S) : 3 December 2010 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 3 December 2010

DECISION : The plaintiff secured by equitable mortgage in priority to the equitable mortgage of the second defendant

CATCHWORDS : REAL PROPERTY – EQUITY – EQUITABLE MORTGAGE – the owner (since deceased) in fee simple of two strata title properties, one a residential unit and one a car parking space mortgaged both properties to a lender by way of a registered mortgage over both titles – she subsequently refinanced the loan by way of a loan from the plaintiff bank which discharged the earlier mortgage by paying out the earlier mortgagee on her behalf – the bank obtained possession of the titles to both properties but obtained a mortgage in registrable form only over the residential unit and not over the car parking space – later the second defendant leant the owner monies and obtained an equitable mortgage securing repayment – HELD – the plaintiff had an equitable mortgage over the parking space, either by way of subrogation or by way of deposit of title deeds which took priority over the second defendant's equitable mortgage

CATEGORY : Principal judgment

CASES CITED : Cochrane v Cochrane (1985) 3 NSWLR 403 Ghana Commercial Bank v Chandiram [1960] AC 732

TEXTS CITED : Peter Butt, Land Law, 5th ed (2006) Thomson Lawbook Co

Commonwealth Bank of Australia - Plaintiff PARTIES : Christine Maree Delacy (Deceased) - First Defendant John Alexander Crawford - Second Defendant

FILE NUMBER(S) : SC 2009/298750