Marsden v DCL Developments Pty Ltd (No. 3) [2016] NSWSC 1795

Supreme Court New South Wales

Medium Neutral Citation: Marsden v DCL Developments Pty Ltd (No. 3) [2016] NSWSC 1795 Hearing dates: 19-21 September 2016; 15 November 2016 & 7 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Judgment for the Plaintiffs for possession of the land known as "Ruby Hill" at 47 Yarrol Road, Kootingal in the State of New South Wales being the whole of the land contained in folio identifiers 1/355485, 2/355485 and 31/635403.

(2) The cross-claim filed 22 July 2016 is dismissed.

(3) The Defendants/Cross-Claimants are to pay the Plaintiffs'/Cross-Defendants' costs. Catchwords: REAL PROPERTY – possession of land – mortgages – loan to company conducting egg farming business – loan partly used to pay out prior mortgagee and partly for working capital – working capital to purchase new flock of birds – failure of borrower to purchase new birds – application for further funds for that purpose – further loan with conditions – whether lender acted unconscionably in imposing conditions – whether lender acted in breach of Banking Code – nature of lender's obligations - whether enforceable obligation on lender to "try to help" – whether any loss sustained from imposition of conditions – no moral obloquy – no unconscionable conduct – lender entitled to possession

INJUNCTIONS – interlocutory injunction restraining lenders from putting receivers in to run business – conditions on borrower for grant of injunction – obligations on borrower for operation of business – breach of conditions and obligations – excessive payments out of business account, failure to pay interest to lender, misleading financial documents produced - application to dissolve injunction – breach of conditions established – interlocutory injunction dissolved Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Farm Debt Mediation Act 1994 (NSW) Cases Cited: Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Australian Securities and Investments Commission v National Exchange Pty Limited (2005) 148 FCR 132; [2005] FCAFC 226 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Foster v Hall [2012] NSWCA 122; [2012] NSW ConvR 56-297 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 Marsden v DCL Developments Pty Ltd (Receivers and Managers appointed) [2016] NSWSC 823 Marsden v DCL Developments Pty Ltd (Receivers and Managers Appointed) (No 2) [2016] NSWSC 1038 Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28; (2016) 90 ALJR 835 Tonto Home Loans Australia v Tavares [2011] NSWCA 389; (2011) 15 BPR 26,699 Walford v Miles [1992] 2 AC 128 Category: Principal judgment Parties: Peter William Marsden (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed) (First Plaintiff) Richard Andrew Stone (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed) (Second Plaintiff) Andrew Bowcher (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed) (Third Plaintiff) DCL Developments (Receivers & Managers appointed) (First Defendant) Stuart Howe (Second Defendant) Linda Howe (Third Defendant) Representation: Counsel: B Katekar (Plaintiffs) J Dooley (Defendants)