Re Westpac Banking Corporation (No 2) [2015] NSWSC 1587

Supreme Court New South Wales

Medium Neutral Citation: Re Westpac Banking Corporation (No 2) [2015] NSWSC 1587 Hearing dates: 24 September 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Equity Before: Robb J Decision: (1) Order in terms of order 1 of the notice of motion filed by Somy Ros and Brian Kelly on 14 May 2015. (2) Order that David Wai pay to Somy Ros and Brian Kelly the costs of the notice of motion filed on 14 May 2015. (3) Order that the notice of motion filed by David Wai on 19 May 2015 be dismissed. (4) Order that David Wai pay to Somy Ros and Brian Kelly the costs of the notice of motion filed on 19 May 2015. (5) Order that exhibits and any documents produced on subpoena may be returnable forthwith in accordance with the Rules. Catchwords: EQUITY – 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 – priority – as both equities are equal, first in time prevails – whether one of the applicants' charge was created on the date when he was able to lodge a caveat, pursuant to the agreement, or when the caveat was actually lodged – consideration of Murphy v Wright and Troncone v Aliperti – agreement created contingency as to timing for the lodgement of the caveat – held that this applicant had to exercise his right to lodge caveat on the title of the property for it to be bound by an equitable charge – this applicant's equitable interest was created later than the other applicants – his application is dismissed Legislation Cited: Real Property Act 1990 (NSW) Trustee Act 1925 (NSW) Cases Cited: Ankar Pty Ltd & Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549 Murphy v Wright (1992) 5 BPR 11,734; BC920350 Nudd v Official Trustee in Bankruptcy [2002] NSWSC 399; (2002) 11 BPR 20,163 Re Westpac Banking Corporation [2015] NSWSC 869 Troncone v Aliperti (1994) 6 BPR 13,291; BC94002483 Wilson v Graham (1997) 10 BPR 19,051; BC9701840 Category: Principal judgment 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 – motion filed 19.5.15)