Australian Financial Services and Leasing Pty Limited v All Up Finance Pty Limited [2012] NSWSC 1004

Supreme Court New South Wales

Medium Neutral Citation: Australian Financial Services and Leasing Pty Limited v All Up Finance Pty Limited [2012] NSWSC 1004 Hearing dates: 27, 28 August 2012 Decision date: 27 September 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1) Dismiss the first defendant's cross-claim dated 27 July 2011. (2) Declare the following documents void and unenforceable: (a) The mortgage over the Strathfield property dated 15 January 2010; (b) The deed of guarantee and indemnity between the third defendant as guarantor and the first defendant as financier dated 15 January 2010; (c) The acknowledgment purportedly signed by the third defendant dated 15 January 2010. (3) The amount paid into court in these proceedings, being the net proceeds of the sale of the Strathfield property, together with any interest accrued thereon, be paid to the plaintiff in part satisfaction of the debt owed by the third defendant to the plaintiff. (4) I will hear the parties on costs. Catchwords: PAYMENT OF MONEY OUT OF COURT - competing claims by two mortgagees for money held in court - proceeds from sale of third defendant's property - third defendant denies signing security documents in relation to mortgage in favour of first defendant - plaintiff relies on third defendant's evidence to claim priority in relation to money held in court - whether third defendant signed security documents - inferences to be drawn from failure to call potential witnesses Legislation Cited: Evidence Act 1995 Cases Cited: Bringinshaw v Bringinshaw [1938] HCA 34; (1938) 66 CLR 336 Commonwealth Bank of Australia v Munro [2011] NSWSC 128 Dilose v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557 Fabre v Arenales (1992) 27 NSWLR 437 Fazio v Fazio [2012] WASCA 72 Gianoutsos v Glykis [2006] NSWCCA 137 HML v R [2008] HCA 16 Ho v Powell [2001] NSWCA 168 Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 Jones v Dunkel (1958) 101 CLR 298 Moore v Moore [2012] FAMCA 387 Romeo v Papalia [2012] NSWCA 221 RPS v R [2000] HCA 3 Payne v Parker (1976) 1 NSWLR 191 Smith v Samuels [1976] 12 SASR 573 Spence v Demasi (1988) 8 MVR 1 Texts Cited: "Cross on Evidence" (Australian edition) Category: Principal judgment Parties: Australian Financial Services and Leasing Pty Limited (Plaintiff) All Up Finance Pty Limited (First Defendant) Areca Finance Pty Limited (Second Defendant) Gordana Skarzynski (Third Defendant) Representation: Counsel: A R Moses SC & M P Cleary (Plaintiff) R Marshall (First Defendant) K Andronos (Third Defendant) Solicitors: Berry Buddle Wilkins Lawyers (Plaintiff) Jackson Lalic Lawyers (First Defendant) Paul Bard Lawyers (Third Defendant) File Number(s): 2010/326066