Adelaide Bank Ltd v Property Builders Pty Ltd [2010] NSWSC 830

New South Wales Supreme Court

CITATION : Adelaide Bank Ltd v Property Builders Pty Ltd [2010] NSWSC 830

HEARING DATE(S) : 17 March 2010; 18 March 2010

JUDGMENT DATE : 29 July 2010

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

Adelaide Bank is entitled to an order for possession against Property Builders. DECISION : Adelaide Bank is entitled to judgment in whatever amount is presently owing against Property Builders, and against Mr Phontos under his Guarantee. The parties to provide Short Minutes of Order to reflect the conclusions in this judgment.

CATCHWORDS : REAL PROPERTY – loan agreement –mortgage and guarantee – variation of loan agreement – whether subsequent agreement was a variation of existing agreement or supplanted and replaced earlier agreement – transfer of mortgage – whether secured debt also assigned – notice of assignment of agreement – s 12 Conveyancing Act - GUARANTEE AND INDEMNITY – action against surety – whether guarantee assigned with principal debt – whether notice of assignment given to mortgagor, notices given under s 12 Conveyancing Act are sufficient evidence of assignment - MORTGAGES – mortgage contract – rights and liabilities of mortgagor and mortgagee – remedies of mortgagee

LEGISLATION CITED : Conveyancing Act 1919 Real Property Act 1900

CATEGORY : Principal judgment

Adelaide Bank Ltd v Property Builders Pty Ltd [2009] NSWSC 849 CASES CITED : Consolidated Trust Co Ltd v Naylor [1936] HCA 33; 55 CLR 423 Nemeth v Reachford Pty Ltd [1998] NSWSC 271 Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81

Adelaide Bank Ltd (First Plaintiff) Advance Investment Finance No 2 Pty Ltd (Second Plaintiff) PARTIES : Eurofinance Capital Ltd (Third Plaintiff) Property Builders Pty Ltd (First Defendant) Michael Phontos (Second Defendant)