Norco Co-Operative Limited v Kelly [2010] NSWSC 719

New South Wales Supreme Court

CITATION : Norco Co-Operative Limited v Kelly [2010] NSWSC 719

HEARING DATE(S) : 28 June 2010

JUDGMENT DATE : 30 June 2010

JURISDICTION : Equity Division

JUDGMENT OF : Lindgren AJ

1. That Fabre Kelly be joined as second defendant nunc pro tunc as from the making of the Court's order on 19 November 2009 for the filing and service of a Statement of Claim. 2. Judgment for the plaintiff against the first defendant for $316,657.98 and interest under s 100 of the Civil Procedure Act 2005 of $89,986.40, totalling $406,644.38. 3. A declaration that each of the three properties mentioned below is charged in favour of the plaintiff as security for that part of the sum of $316,657.98 referred to in the Amended Statement of Claim filed in proceedings 09/287863 in the Equity Division of the Supreme Court of New South Wales that was paid in reduction of the amount secured by registered mortgage over that property: DECISION : a. Lot 171 Registered Plan 862765 Title Reference 18644058. b. Lot 9 Registered Plan 891053, Title Reference 50068238. c. Lot 10 Registered Plan 891053, Title Reference 50068239. 4. That the defendants pay the plaintiff's costs of the proceeding. 5. That the plaintiff have liberty to apply in relation to the determination of the three amounts (or any of them) referred to in para 3 above.

CATCHWORDS : EQUITABLE CHARGE – moneys misappropriated by first defendant from plaintiff applied in reduction of mortgage over properties of first and second defendants – title to each property transferred without consideration by both defendants to second defendant – second defendant not a purchaser for value and without notice – title subject to charge in favour of plaintiff.