Liquidity Financial Services Pty Ltd v Prime Capital Securities Pty Ltd [2012] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: Liquidity Financial Services Pty Ltd v Prime Capital Securities Pty Ltd [2012] NSWSC 1185 Hearing dates: 24 September 2012 Decision date: 08 October 2012 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Summons dismissed, verdict and judgment for defendant/cross-claimant Catchwords: EQUITY - loan agreement - specific performance Cases Cited: Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737 Georges v Wieland [2009] NSWSC 733 Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280 Texts Cited: Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th ed (2002) Category: Principal judgment Parties: Liquidity Financial Services Pty Ltd (first plaintiff) David Kenny (second plaintiff) Patricia Kenny (third plaintiff) Prime Capital Securities Pty Ltd (defendant) Representation: Counsel: J D Catlin (plaintiffs) P T Newton (defendant) Solicitors: Oliver Lane Lawyers (plaintiffs) Kemp Strang (defendant) File Number(s): SC 2012/216158 Publication restriction: Nil

Judgment

Introduction 1These proceedings concern a Loan Agreement made on 21 October 2011 between: - (a)the defendant, Prime Capital Securities Pty Ltd ("Prime") as lender; (b)the first plaintiff, Liquidity Financial Services Pty Ltd ("Liquidity") as borrower; and (c)the second and third plaintiffs, Mr David Kenny and Mrs Patricia Kenny, as guarantors. 2Mr and Mrs Kenny are directors of Liquidity, and husband and wife. 3Mr and Mrs Kenny are the registered proprietors of a property at Knockrow ("the Property"). Erected on the Property is a residence known as "Le Paradis" which overlooks Byron Bay and Lennox Head. 4Since on or about 12 December 2008, ING Bank (Australia) Limited ("ING") has held a first registered mortgage over the Property.