Prime Capital Securities Pty Ltd v Metafax Pty Ltd [2016] NSWSC 1826

Supreme Court New South Wales

Medium Neutral Citation: Prime Capital Securities Pty Ltd v Metafax Pty Ltd [2016] NSWSC 1826 Hearing dates: 14 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Common Law Before: Davies J Decision: I order that $60,000 is to be paid out of the controlled moneys account referred to in the orders of 16 September 2016 to the Defendants' solicitors. Catchwords: REAL PROPERTY – mortgages – rights and liabilities of mortgagor and mortgagee - possession proceedings – cross-claim impugning fees, interest and charges and claiming damages from third parties - sale of one security property – undisputed amount paid to mortgagee – balance paid into controlled moneys account – application by Defendants for access to part of funds for legal fees – whether principle in Inglis v Commonwealth Bank applies – exception for matters obviously wrong - whether value of other security and balance of settlement proceeds exceeds mortgagee's claim – disputed valuations – whether debt to mortgagee at time of order or at time of judgment at final hearing – whether mortgagees' future costs should be considered Cases Cited: Clarke v Japan Machines (Australia) Pty Ltd (No. 2) [1984] 1 Qd.R 421 Harvey v McWatters (1948) 49 SR (NSW) 173 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28; (2016) 90 ALJR 835 Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599; [2006] NSWConv R 56-161 Category: Procedural and other rulings Parties: Prime Capital Securities Pty Ltd (Plaintiff) Metafax Pty Ltd (First Defendant) Nadim Moujalli (Second Defendant) Wilhelmina Moujalli (Third Defendant) Good Legal Pty Ltd (Third Cross-Defendant) Jason Sammut (Fourth Cross-Defendant) Robert Storey (Fifth Cross-Defendant) Representation: Counsel: C E Bannan (Plaintiff) T Rickard (Defendant) A Wear (Third Cross-Defendant) D Yakenian (Fourth Cross-Defendant) C Stevenson (Fifth Cross-Defendant)