Manttan v Equititrust Limited [2010] NSWSC 534

New South Wales Supreme Court

CITATION : Manttan v Equititrust Limited [2010] NSWSC 534

HEARING DATE(S) : 24 May 2010 JUDGMENT OF : Biscoe AJ

EX TEMPORE JUDGMENT DATE : 24 May 2010

CATCHWORDS : JUDGMENTS AND ORDERS - construction of interlocutory orders.

CATEGORY : Consequential orders

CASES CITED : Equititrust v Manttan [2010] NSWCA 95

PARTIES : Michael Alan Manttan (Plaintiff) Equititrust Limited (Defendant)

FILE NUMBER(S) : SC 2010/91165

COUNSEL : Mr J P Donohoe (Plaintiff) Mr D C Price (Defendant)

SOLICITORS : Burkett & Taylor (plaintiff) Bransgroves (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BISCOE AJ

24 May 2010

2010/00091165 MICHAEL ALAN MANTTAN v EQUITITRUST LIMITED EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a dispute over the construction of the following interlocutory orders made by Gzell J on 23 April 2010: "1 Pursuant to s 74MA of the Real Property A c t , caveat number AE 618082X, be withdrawn from the title of folio number 50/SP70527 and 65/SP70527 known as unit 50, 95 Annandale Street, Annandale and unit 65, 95 Annandale Street, Annandale for the purpose of completing the contract for sale of land entered on 24 November 2009.

2 The net proceeds of the sale referred to in paragraph one of these orders, after the payment of all reasonable costs of sale and payment to the first mortgagee, be paid into the Supreme Court of New South Wales." BACKGROUND 2 On 14 November 2007, the defendant, Equititrust Limited, lent money to Tomasa Pty Ltd guaranteed by the plaintiff. In December 2008 Tomasa defaulted. As of March 2010 the amount owed to Equititrust was in the order of $900,000. By clause 9.3 of the loan deed the plaintiff provided security as follows: "9.3 As further security the Guarantor hereby charges (by execution of this deed as beneficial owner) all freehold and leasehold interest in any land(s) (or any part thereof) which the Guarantor may now have or during the currency of the securities may acquire and the Guarantor further agrees that the Mortgagee may require execution by the Guarantor of such form of additional security containing the same terms and conditions as the Mortgage referred to in the Schedule hereto. The Mortgagee shall in addition have the right to lodge a Caveat over any real and/personal property of the Guarantor, howsoever held, an [sic] the Guarantor hereby (by execution of this deed) agrees and acknowledges that this Deed creates in favour of the Mortgagee a Caveatable interest in respect of any Real Property of the Guarantor howsoever held." 3 In April 2009 the plaintiff lodged caveat AE 618082X over the title of some 11 properties owned by the defendant. The caveat identified the nature of the interest as, "an interest as an equitable mortgagee pursuant to an unregistered second mortgage". 4 On 24 November 2009 the plaintiff contracted to sell two of the properties, 50 and 65 Annandale Street, Annandale. Settlement was scheduled for 7 May 2010.