Westpac Banking Corporation [2015] NSWSC 869

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation [2015] NSWSC 869 Hearing dates: 19 June 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Jurisdiction: Common Law Before: Robb J Decision: No orders made. Refer to [46] and [47]. Catchwords: PROCEDURE – funds paid into Court by plaintiff mortgagee – funds represent surplus proceeds after mortgagee sale of property – two applications for payment out of Court – two competing equitable interests in land – first notice of motion adjourned and second notice of motion heard – whether applicant entitled to funds on the basis of a charge over the property sold – registered proprietors of property not named as parties to deed – signed deed as directors/secretary – whether registered proprietors parties – proper construction of deed – registered proprietors parties to deed – guaranteed repayment by debtor – despite ambiguity, the deed allowed applicant to lodge a caveat over the property – deed allowed applicant to create a charge over property by lodgement of the caveat – the issue of priority between the two competing interests must be determined – hearing of both notices of motion to be relisted for balance of issues to be determined Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Bond v Rees Corporate Advisory Pty Ltd [2013] VSCA 13 Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWSC 260 Coleman v Bone (1996) 9 BPR 16,235 Iaconis v Laza [2007] NSWSC 1103; (2007) 13 BPR 24,937 Murphy v Wright (1992) 5 BPR 11,734; BC920350 Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572; (2011) 86 ACSR 636 Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319 Taleb v National Australia Bank [2011] NSWSC 1562; (2011) 82 NSWLR 489 Troncone v Aliperti (1994) 6 BPR 13,291; BC9402483 Category: Consequential orders (other than Costs) Parties: Westpac Banking Corporation (plaintiff) David Wai (applicant – motion filed 19.5.15) Somy Ros (first applicant – motion filed 14.5.15) Brian Kelly (second applicant – motion filed 14.5.15) David Wai (first respondent – motion filed 14.5.15) Regina Thei (second respondent – motion filed 14.5.15) Brett Firman (third respondent – motion filed 14.5.15) Representation: Counsel: Amy Knox (applicant motion filed 14.5.15) M Bennett (applicant on motion filed 19.5.15)