Residential Housing Corporation v Esber & Ors [2011] NSWCA 25

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Residential Housing Corporation v Esber & Ors [2011] NSWCA 25 Hearing dates: 28 July 2010 Decision date: 21 February 2011 Before: Campbell JA at 1 Macfarlan JA at 194 Sackville AJA at 195 Decision: (1) Leave to appeal be granted, if necessary; (2) The appeal be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORRENS SYSTEM - MORTGAGES - SALE BY MORTGAGEE - DISPOSITION OF SURPLUS PROCEEDS OF SALE - RPA land subject to two registered mortgages and one unregistered mortgage - first mortgagee exercises power of sale and pays whole amount surplus to its entitlement to second mortgagee - second mortgagee pays whole amount surplus to its entitlement to third mortgagee - third mortgage later held to secure no debt, and third mortgagee becomes insolvent - whether second mortgagee obliged to compensate mortgagor for amount paid to third mortgagee - whether s 58(3) RPA applies at all to a mortgagee other than the mortgagee who exercises a power of sale - whether s 58(3) RPA requires payment of surplus proceeds to a mortgagee who is unregistered - comparison of s 58(3) RPA with s 88(1) Property Law Act 1974 (Qld) and s 135 Real Property Act 1886 (SA) - interaction of s 58(3) with equitable obligations of a mortgagee who holds surplus proceeds of sale