First Mortgage Managed Investments Pty Limited v Pittman (No 3) [2014] NSWCA 361

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: First Mortgage Managed Investments Pty Limited v Pittman (No 3) [2014] NSWCA 361 Hearing dates: On the papers. Last submissions filed 2 October 2014 Decision date: 31 October 2014 Before: Beazley P; Gleeson JA; Sackville AJA Decision: 1. Set aside Order 1 made by Garling J on 18 December 2012. 2. Amend Order 2 made by Garling J on 18 December 2012 by adding the words "except insofar as is necessary to give effect to the Orders made by the Court of Appeal on 31 October 2014". 3. Judgment for the Appellant (FMI) against the Respondents in the sum of $1,951,266.00 (Judgment Sum), such sum to be payable within six months of these Orders. 4. On or before seven days from the date of these orders, the First Respondent (Mr Pittman) to deliver to FMI's solicitor: (a) Certificate of title folio identifier 8/751629; and (b) executed mortgage in the form annexed to these orders and marked "A". 5. In the event of a default by Mr Pittman in compliance with Order 4(b), order that the Registrar of the Court of Appeal be empowered to execute the mortgage annexed and marked "A" in the name of, and on behalf of, Mr Pittman. 6. On or before seven days from the date of these orders the Respondents deliver to FMI's solicitor: (a) Certificate of title folio identifier 9/751629; and (b) executed mortgage in the form annexed to these orders and marked "B". 7. In the event of a default by the Respondents in compliance with Order 6(b), order that the Registrar of the Court of Appeal be empowered to execute the mortgage annexed and marked "B" in the name of, and on behalf of, the Respondents. 8. Grant liberty to FMI to apply for further orders if Mr Pittman fails to comply with Order 4(a) and/or the Respondents fail to comply with Order 6(a). 9. Declare that the amount owing secured by the mortgages registered over the land in folio identifier: (a) 8/751629, situated at and known as 1807 Bells Line of Road Kurrajong Heights; (b) 9/751629, situated at and known as 1767 Bells Line of Road Kurrajong Heights; (c) 23/751629, situated at and known as 1727 Bells Line of Road Kurrajong Heights; is the Judgment Sum. 10. Upon payment of the Judgment Sum by the Respondents and post-judgment interest payable by the Respondents pursuant to s 101 of the CP Act, FMI is to deliver to the Respondents' solicitor an executed form of discharge of the following: (a) the mortgage over the land in folio identifier 8/751629 created pursuant to Order 4 above; (b) the mortgage over the land in folio identifier 9/751629 created pursuant to Order 6 above; and (c) the existing mortgage over the land in folio identifier 23/751629. 11. Lift the stay granted on 1 February 2013 of Orders 6 to 12 in Supreme Court proceedings 2008/288217 made on 18 December 2012. 12. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). [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: PROCEDURE - judgment and orders - orders consequential on findings pursuant to the Contracts Review Act - whether borrowers under an unjust loan who had the benefit of using loan funds to discharge prior mortgages should pay interest on the loan sum used for that purpose - whether the lenders are entitled to security for that sum Legislation Cited: Civil Procedure Act 2005 (NSW) ss 100, 101 Contracts Review Act 1980 (NSW) s 7 Uniform Civil Procedure Rules 2005 (NSW) r 6.12 Cases Cited: Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; 11 BPR 20,841 First Mortgage Managed Investments Pty Limited v Pittman (No 2) [2014] NSWCA 272 First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 Maguire v Makaronis [1997] HCA 23; 188 CLR 449 Category: Consequential orders Parties: First Mortgage Managed Investments Limited (Appellant) Basil James Pittman (First Respondent) Rex Neil Webster (Second Respondent) Representation: Counsel: AG Bell SC / KS Howe (Appellant) TF Robertson SC / JE Lazarus (Respondents) Solicitors: Bransgroves Lawyers (Appellant) Brock Partners Lawyers (Respondents) File Number(s): 2012/396832 Decision under appeal Jurisdiction: 9111 Citation: First Mortgage Managed Investments Ltd v Pittman [2012] NSWSC 1332 Date of Decision: 2012-11-01 00:00:00 Before: Garling J File Number(s): 2008/288217