Property Builders Pty Limited v Adelaide Bank Limited [2011] NSWCA 266

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Property Builders Pty Limited v Adelaide Bank Limited [2011] NSWCA 266 Hearing dates: 27 July 2011 Decision date: 15 September 2011 Before: Bathurst CJ at [1]; Allsop P at [58]; Sackville AJA at [59] Decision: 1 Appeal allowed in part. 2 Orders 4 and 6 be set aside and the following orders made in lieu: (a) Judgment against the first defendant in favour of the first plaintiff in the sum of $268,821.79 to take effect as at 29 July 2011 plus interest thereon until the date of payment at the rate referred to in the letter from Eurofinance Capital Pty Limited to Property Builders Pty Limited dated 31 March 2008, being 16.60 percent per annum. (b) Direct the parties within 10 days to file written submissions as to the appropriate orders as to the costs of the appeal and the costs of the proceedings in the Court below. [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: REAL PROPERTY - loan agreement - where loan "rolled over" - whether roll over of loan creates new loan REAL PROPERTY - loan agreement - where mortgage assigned - whether secured debt also assigned REAL PROPERTY - loan agreement -whether notice given - whether notice effective - whether legal or equitable assignment - Conveyancing Act 1919 (NSW) s 12 GUARANTEE AND INDEMNITY - whether guarantee assigned with principal debt - whether notices of assignment given under s 12 Conveyancing Act 1919 (NSW) are sufficient evidence of assignment of guarantee Legislation Cited: Conveyancing Act 1919 s 6(1), s 12 Land Title Act 1994 (Qld) s 62 Real Property Act 1900 s 52, 80A Cases Cited: Cator v Croydon Canal Co (1843) 160 ER 1149 Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423 Fulham v M'Carthy (1848) 1 HLC 703 Holroyd v Marshall (1862) 10 HLC 191 Hutchens v Deauville Investments Pty Limited [1986] HCA 85; (1986) 68 ALR 367 International Leasing Corporation Limited v Aiken [1967] 2 NSWR 427 Nemeth v Reachcord Pty Limited [1998] NSWSC 271; (1998) 9 BPR 16,557 Queensland Premier Mines Pty Limited v French [2007] HCA 53; (2007) 235 CLR 81 Tailby v Official Receiver (1888) 12 App Cas 523 Category: Principal judgment Parties: Property Builders Pty Limited (First Appellant) Michael Phontos (Second Appellant) Adelaide Bank Limited (First Respondent) Advance Investment Finance No 2 Pty Limited (Second Respondent) Eurofinance Capital Limited (Third Respondent) Representation: Counsel Rod Freeman (First and Second Appellants) M J Cohen (First, Second and Third Respondents) Solicitors Phontos Legal (First and Second Appellants) Gadens Lawyers (First, Second and Third Respondents) File Number(s): 2008/286721 Decision under appeal Citation: [2010] NSWSC 830 Date of Decision: 2010-07-29 00:00:00 Before: Simpson J File Number(s): 2008/286721