Express Business Finance Pty Limited v Monaco & anor [2010] NSWSC 206

New South Wales Supreme Court

CITATION : Express Business Finance Pty Limited v Monaco & anor [2010] NSWSC 206

HEARING DATE(S) : 5 February 2010

JUDGMENT DATE : 5 February 2010

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

EX TEMPORE JUDGMENT DATE : 5 February 2010

1. Order that Mr Barry Taylor and Mr Andrew Fletcher Needham of HLB Mann Judd, Level 19, 207 Kent Street, Sydney, be appointed trustees of land pursuant to s 66G of the Conveyancing Act 1919. DECISION : 2. An order that the land be vested in such trustees subject to any encumbrances affecting the entirety of the land but free from any encumbrances affecting any undivided share or shares of the land to be held by the trustees upon a statutory trust under Division 6D of Part 4 of the Conveyancing Act 1919. 3. Order that the costs and expenses of the sale of the land be met out of the proceeds of sale of the land. Order that the costs of the plaintiff of the proceedings be paid out of the proceeds of the sale of the land with a direction that in the first instance the plaintiff's costs are paid out of the share of Mr Monaco and order that the second defendant's costs of the proceedings also be paid out of the proceeds of the sale of the land but without directing out of what portion of the proceeds of the land those costs should be borne.

CATCHWORDS : MORTGAGES – 66G order for sale of land – co-owner's signature on mortgage documents a forgery –HELD – equitable mortgage granted over a half interest in property – order made for appointment of trustees for sale of land and vesting of in land in trustees for sale – mortgagee's costs be paid out of proceeds of sale with a direction that in the first instance those costs be borne out of the first defendant's share of the proceeds of sale – order that second defendant's costs of the proceedings be paid out of the proceeds of sale – order for costs against first defendant.