AJG Capital Pty Ltd & Ors v AJG Properties & Ors [2010] NSWSC 884

New South Wales Supreme Court

CITATION : AJG Capital Pty Ltd & Ors v AJG Properties & Ors [2010] NSWSC 884

HEARING DATE(S) : 6/08/10

JUDGMENT DATE : 6 August 2010

JUDGMENT OF : Slattery J at 1

EX TEMPORE JUDGMENT DATE : 6 August 2010

1. Order that the agreement contained in the debenture charge given by the first cross defendant to the cross claimant dated 28 June 2002 (AJG Properties Charge) be specifically performed by the first cross defendant giving to the cross claimant possession of the land contained within Folio Identifiers 11/SP73824, 12/SP73824 and 13/SP73824 being the property known as Lots 11, 12 and 13/1178 Pacific Highway, Pymble, New South Wales (Pymble Properties). 2. By way of enforcement of Order 1 above, Judgment for the cross claimant for possession of the Pymble Properties and leave to issue a Writ of Possession for the Pymble Properties forthwith but such writ shall not issue until Friday, 10 September 2010. 3. Order that the Pymble Properties be sold by the cross claimant by public auction, if the reserve price is achieved, or if not, then by private treaty at the best price obtainable being not less than 90% of the reserve price. For this purpose the reserve price shall, subject to any further order, be a price equal to the valuation disclosed in Confidential Exhibit JCB-1. 4. Order that the cross claimant be appointed to transfer the Pymble Properties to the purchaser(s) thereof to effectuate the sale. 5. Order that after the payment of all expenses in respect of the sale, the sale proceeds of the Pymble Properties be applied so as to pay to the third cross defendant the amount secured by the third cross defendant's mortgage being mortgage registered number AE362316 and any other encumbrances of the land in Order of their priority in accordance with their terms pursuant to the Real Property Act then to the cross claimant in satisfaction of the AJG Properties Charge with any residue to be paid to the cross defendant. 6. Order that the agreement contained in the debenture charge given by the second cross defendant to the cross claimant dated 28 June 2002 (Georgie Investments Charge) is specifically performed by the second cross defendant giving to the cross claimant possession of the land contained within Folio Identifier 782/746828 being the property known as 23 Hunter Street, Raymond Terrace, New South Wales (Raymond Terrace Property). DECISION : 7. By way of enforcement of Order 6 above, Judgment for the cross claimant for possession of the Raymond Terrace Property and leave to issue a Writ of Possession for the Raymond Terrace Property forthwith but such writ shall not issue until Friday, 10 September 2010. 8. Order that the Raymond Terrace Property be sold by the cross claimant by public auction, if the reserve price is achieved, or if not, then by private treaty at the best price obtainable being not less than 90% of the reserve price. For this purpose the reserve price shall, subject to any further order, be a price equal to the valuation disclosed in Confidential Exhibit JCB-1. 9. Order that the cross claimant be appointed to transfer the Raymond Terrace Property to the purchaser(s) thereof to effectuate sale. 10. Order that after the payment of all expenses in respect of the sale, the sale proceeds of the Raymond Terrace Property be applied so as to pay to the third cross defendant the amount secured by the third cross defendant's mortgage being mortgage registered number 8904864 and any other encumbrances of the land in Order of their priority in accordance with their terms pursuant to the Real Property Act then to the cross claimant in satisfaction of the Georgie Investments Charge with any residue to be paid to the cross defendant. 11. Order that the cross claimant's costs of the proceedings be paid out of the proceeds of the sale of the Pymble Properties and Raymond Terrace Property. 12. If Properties or Georgie pays the amounts due respectively to the cross claimant before 10 September 2010 these orders shall be permanently stayed. 13. Direct the cross claimant to give notice of these orders to any occupant of the Raymond Terrace Property within three days. 14. Liberty to the parties to apply with respect to any matter that may arise with respect to the sale of the Raymond Terrace Property or the Pymble Properties or the distribution of the sale proceeds.