Australia and New Zealand Banking Group Ltd v Fairfield City Council [2016] NSWSC 668

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Ltd v Fairfield City Council [2016] NSWSC 668 Hearing dates: 4 May 2016 Date of orders: 26 May 2016 Decision date: 26 May 2016 Jurisdiction: Equity - Commercial List Before: Emmett AJA Decision: (1) Declare that: (a) by way of first registered mortgage, the plaintiff had an interest in the property contained in folio identifier 29/609330 known as 128 Hemphill Avenue, Mount Pritchard NSW 2170 (the Property) immediately before the sale of the Property on 31 October 2014 by the defendant for unpaid rates and charges (the Sale); (b) the plaintiff is entitled to the balance of the proceeds of the sale, held on trust by the defendant in the amount of $332,398.75. (2) Order that, from the balance of the proceeds of the Sale held on trust by the defendant in the amount of $332,398.75, the defendant: (a) pay the amount of $329,398.75 to the plaintiff by way of electronic transfer made into the trust account of the solicitors for the plaintiff, Kemp Strang; and (b) retain the amount of $3,000 for payment of its solicitor's costs. Catchwords: CONTRACTS – effect of liquidator's disclaimer under section 568A(1) of the Corporations Act 2001 (Cth)

EXECUTION – whether guarantee was binding on parties when not executed as a deed

REAL PROPERTY – whether after escheat the property the subject of the mortgage vested in the Crown in right of New South Wales or the Commonwealth

LOCAL GOVERNMENT – exercise of the council's power of sale under section 713 of the Local Government Act 1993 (NSW) Legislation Cited: Corporations Act 2001 (Cth) Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32 Re Middle Harbour Investments Ltd (in liq) and the Companies Act [1977] 2 NSWLR 652 Re Weiland (1945) 13 ABC 220 Category: Principal judgment Parties: Australia and New Zealand Banking Group Ltd (Plaintiff) Fairfield City Council (Defendant) Representation: Counsel: O Small (solicitor for the Plaintiff) M Hodges (solicitor for the Defendant)