Aged Care Services Pty Ltd v Kanning Services Pty Ltd [2013] NSWCA 393

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aged Care Services Pty Ltd v Kanning Services Pty Ltd [2013] NSWCA 393 Hearing dates: 15 August 2013 Decision date: 26 November 2013 Before: Meagher JA at [1]; Gleeson JA at [2]; Leeming JA at [95] Decision: 1. Appeal dismissed. 2. Appellant to pay the first respondent's costs. [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 - mortgages and charges generally - particular mortgages and encumbrances - subrogation - where joint venture agreement - where third party has paid off a mortgage - whether the presumption that the third party intends to keep the mortgage alive for its own benefit was rebutted - whether primary judge erred in rejecting the subrogation claim

EQUITY - general principles - priorities between competing interests Legislation Cited: Real Property Act 1900, s 57(2)(b) Cases Cited: Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221 Baumgartner v Baumgartner [1987] HCA 59; 164 CLR 137 Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 69 Cash Resources Australia Pty Ltd v B.T. Securities Ltd [1988] VR 576 Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072 Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291 Cochrane v Cochrane (1985) 3 NSWLR 403 Coleman v Bone (1996) 9 BPR 16,235 Filby v Mortgage Express (No 2) [2004] EWCA Civ 759 Ghana Commercial Bank v Chandiram [1960] AC 732 Halifax plc v Omar [2002] EWCA Civ 121 in Highland v Exception Holdings Pty Ltd (in liq) [2006] NSWCA 318; (2007) 60 ACSR 223 In the matter of Dalma No 1 Pty Limited (in liquidation) (ACN 111 772 260); Application of Bruce Gleeson and David Shannon in their capacity as joint and several liquidators of Dalma No 1 Pty Limited (in liquidation) and anor [2013] NSWSC 1335 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 New South Wales Medical Defence Union Ltd v Crawford (No 3) (NSWCA, unreported, 23/9/94) Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177 State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11,947 Taleb v National Australia Bank Ltd [2011] NSWSC 1562; 82 NSWLR 489 Troncone v Aliperti (1994) 6 BPR 13,291 Texts Cited: C Mitchell, The Law of Subrogation, Clarendon Press, Oxford (1994) Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002) Category: Principal judgment Parties: Aged Care Services Pty Ltd (Appellant) Kanning Services Pty Ltd trading as Community & Aged Care Consulting Services (First Respondent) Macedonian Aged Care & Accommodation Ltd (Second Respondent) Representation: Counsel: B A Coles QC with S Galitsky (Appellant) P Blackburn-Hart SC with D Roberts (First Respondent) Solicitors: Websters Solicitors (Appellant) Richard Busutill & Co (First Respondent) File Number(s): 2012/205864 Decision under appeal Citation: Aged Care Services v Macedonian Aged Care [2012] NSWSC 531 Date of Decision: 2012-06-07 00:00:00 Before: McDougall J File Number(s): 2010/422352