Ellis v Newton [2011] NSWSC 117

Supreme Court New South Wales

Medium Neutral Citation: Ellis v Newton [2011] NSWSC 117 Hearing dates: 7-9 February 2011 Decision date: 25 February 2011 Before: Rein J Decision: Judgment for the plaintiff against the first defendant in the amount of $189,224.37 (with an adjustment from 7 February 2011 to date) and a declaration in the terms sought in paragraph 1 of the summons Catchwords: GUARANTEE - where plaintiff obtained an unregistered mortgage and consent to caveat from the defendants over their jointly-owned property as security for unpaid rent from a company substantially owned by the first defendant for which the first defendant was guarantor - where the debtor and guarantor failed to pay - where plaintiff seeks to enforce his equitable interest in the property - whether the defendants are entitled to relief under s 9 of the Contracts Review Act 1980 (NSW) - whether the mortgage and caveat were intended to be legally binding

REMEDIES - declarations - where the mortgage in favour of the plaintiff is unregistered and there is a prior registered mortgage over the same property - whether there is utility in making a declaration in favour of the plaintiff Legislation Cited: Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Australian Bank Ltd v Stokes (1985) 3 NSWLR 174 King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696 Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145 Texts Cited: Meagher, Heydon & Leeming, Meagher Gummow & Lehane's Equity Doctrines and Remedies 4th ed (2002) LexisNexis Butterworths Category: Principal judgment Parties: Daniel Ellis (Plaintiff) Richard Newton (First Defendant) Robyn Laidlaw Newton (Second Defendant) Representation: Counsel: R Steele (Plaintiff) B Levet (Defendants) Solicitors: Michie, Shehadie & Co (Plaintiff) Simmons & McCartney Lawyers & Attorneys (Defendants) File Number(s): SC 2008/279436; 2009/288200