National Australia Bank Ltd v Clowes [2013] NSWCA 179

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: National Australia Bank Ltd v Clowes [2013] NSWCA 179 Hearing dates: 7 June 2013 Decision date: 17 June 2013 Before: McColl JA at [1] Macfarlan JA at [2] Leeming JA at [3] Decision: (1) Appeal allowed. (2) Set aside the orders made by the court below on 14 February 2012, save for the judgment entered against Mr Clowes in the amount of $969,262.41 and the order that he pay the Bank's costs, and in lieu thereof: (a) Declare that the Shares are subject to a mortgage, in favour of the Bank, which secures the monies owing to the Bank by the first and third respondents pursuant to the Peak Performance Facility Agreement and the Home Loan Agreement. (b) Declare that the Bank is entitled to sell the Shares. (c) Order that the first and third, fourth and fifth respondents deliver up vacant possession of the property known as Unit 7, 43 xxxxx Avenue, Double Bay NSW to the Bank or its agent. (d) Order that the first and third respondents, or the first and the fourth and/or fifth respondents, execute and deliver up to the Bank a transfer of the Shares within 14 days of today, in default of which a Registrar of this Court is empowered to execute a transfer on their behalf. (e) Order that the first respondent pay the costs of this appeal. [Note: The street address of the property has not been reproduced, in accordance with the Court's policy on identity theft prevention. Order 2(c), when entered, will refer to the full address of the property.] [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: MORTGAGES - equitable mortgage over shares - creation - effect of specifically enforceable agreement to create mortgage by deposit of share certificate - failure to obtain signed transfer - subsequent extension by contract to secure later borrowing