Telfer v Fairfax [2016] NSWSC 60

Supreme Court New South Wales

Medium Neutral Citation: Telfer v Fairfax [2016] NSWSC 60 Hearing dates: 15 – 16 October 2015 Date of orders: 12 February 2016 Decision date: 12 February 2016 Jurisdiction: Equity Before: Robb J Decision: 1. Direct the parties to bring in short minutes of order to give effect to these reasons for judgment.

2. The court will hear the parties as to costs. Catchwords: CONTRACTS – construction and interpretation – identification of debts referred to in deed – whether deed created equitable charge over property or only equitable charge over proceeds of sale of property under contract of sale – held deed created equitable charge over property by deposit of certificate of title and by consent of registered proprietor to lodge caveat against title and equitable charge over proceeds of sale under contract – determination of amount secured by deed – whether equitable charge secured payment of compensation for breach of deed – dependant on proper construction of deed – meaning of "reimburse" in charging provision – deed intended to ensure payee suffered no loss – held equitable charge secured payment of compensation

EQUITY – competing equitable charge over property and equitable interest in property of a purchaser under a contract of sale – where the equities are equal the first in time prevails – equities equal – equable charge first in time – equitable charge entitled to priority – purchaser's interest in property under contract of sale valid – purchaser entitled to completion of contract upon payment of amount secured by equitable charge

DAMAGES – no express provision in deed for payment of interest on default of timely payment of amounts payable under deed – whether obligation to pay interest implied – no implied obligation to pay interest – payee entitled to compensation for breach – calculation of compensation having regard to interest rate provided for in s 100 Civil Procedure Act 2005 (NSW) – principles applicable – compensation based on statutory interest rate Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Cook v Fowler (1874) LR 7 HL 27 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 6 BPR 14,053, (1994) NSW Conv R 55 – 731 Hardie v Shadbolt [2004] WASCA 175 Kyleast Pty Ltd v Yogoat Pty Ltd (In Liq) unreported, 20 November 1995 BC9506745 Lai v Gong (1997) 8 BPR 15,837 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 310 ALR 113 Murphy v Wright (1992) 5 BPR 11,734 Re Andersons Seeds Ltd [1971] 2 NSWLR 120 Sotiropoulos v Sotiropoulos [2015] NSWSC 855 Stratton Finance Pty Ltd v Webb [2014] FCAFC 110 Theodore v Mistford Pty Ltd [2005] HCA 45; (2005) 221 CLR 612 Tricontinental Corporation Ltd v Associated Securities Ltd (1981) 6 ACLR 122 Troncone v Aliperti (1992) 6 BPR 13,291 Zürich Australian Insurance Ltd v Fruehauf Finance Corporation Pty Ltd (1993) 7 ANZ Ins Cas 61-177 Category: Principal judgment Parties: Carolyn Telfer (plaintiff) Kenneth John Fairfax in his capacity as administrator of the estate of Lyall Telfer (first defendant) Mark Andrew Telfer (second defendant) Representation: Counsel: A G Martin (plaintiff) M Rollinson (second defendant)