Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073

Supreme Court New South Wales

Medium Neutral Citation: Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073 Hearing dates: 30 June 2017 & 27 July 2017 Date of orders: 17 August 2017 Decision date: 17 August 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave to the Defendant to file a cross-claim seeking an account, a claim for money had and received, and seeking relief for breaches of s 21 of the Australian Consumer Law.

(2) On payment to the Plaintiff of the sum of $10,000, which is to be added to the Security Amount sum of $71,500 referred to in paragraph 3 of the Acknowledgement executed by the Defendant on 21 December 2016, leave to the Defendant to claim as a head of damage the matter specified in particular (b) to paragraph 53 of the second proposed cross-claim.

(3) The Defendant is to pay 50% of the Plaintiff's costs of the Notice of Motion filed 25 May 2017. Catchwords: REAL PROPERTY – mortgages - claim for possession of land – parties settled proceedings prior to hearing – payment to mortgagee – part payment under protest to obtain discharge – mortgagor subsequently sought leave to file cross-claim – whether mortgagor's causes of action would be doomed to fail and therefore futile – mortgagor claims that mortgagee did not roll over loan under Facility Agreement in breach of agreement – whether mortgagor has claim for breach of contract – mortgagor's remedies confined to taking of accounts and claim for money had and received – in addition mortgagor seeks damages for breach of s 21 Australian Consumer Law – whether claim available

MORTGAGES AND SECURITIES – redemption of mortgage - right of mortgagee to retain sufficient funds to meet disputed claims by mortgagor – acknowledgment signed by mortgagor at settlement notifying disputed amounts – whether additional claim available – whether mortgagee can demand further security for additional claim Legislation Cited: Australian Consumer Law 2010 (Cth) Competition and Consumer Act 2010 (Cth) Real Property Act 1900 (NSW) Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073 Australia and New Zealand Banking Group Ltd v Mishra [2012] NSWSC 1333; (2012) 16 BPR 31,665 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27 Projects Research Pty Ltd v Permanent Trustee of Australia Ltd (1990) 5 BPR 97,341 Riva NSW Pty Ltd CAN 113 881 815 v Key Nominees Pty Ltd [2014] NSWSC 301 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Thambiappah v Commonwealth Bank of Australia [2010] NSWSC 520 Westpoint Finance Pty Ltd v Chocolate Factory Apartments Ltd [2002] NSWCA 287; (2002) 12 BPR 22,969 Category: Procedural and other rulings Parties: Australian Securities Ltd (Plaintiff) Borina Pty Ltd (Defendant) Representation: Counsel: S Docker (Plaintiff) J Neal (Defendant)