Prime Capital Securities Pty Ltd v Elizabeth Ann Calleja; Calleja PJC Furniture Freighters Pty Ltd v Prime Capital Securities Pty Ltd; Elizabeth Ann Calleja v Prime Capital Securities Pty Ltd [2017] NSWSC 1694

Supreme Court New South Wales

Medium Neutral Citation: Prime Capital Securities Pty Ltd v Elizabeth Ann Calleja; Calleja PJC Furniture Freighters Pty Ltd v Prime Capital Securities Pty Ltd; Elizabeth Ann Calleja v Prime Capital Securities Pty Ltd [2017] NSWSC 1694 Hearing dates: 31 October 2017, 1 – 2 November 2017, 6 – 8 November 2017 Date of orders: 06 December 2017 Decision date: 06 December 2017 Jurisdiction: Common Law Before: Wilson J Decision: (1) The Statement of Claim filed by Prime Capital Securities Pty Ltd on 20 May 2016 is dismissed. (2) Judgment is entered for the defendant (and claimant and cross-claimant). (3) It is declared that the Facility Agreement dated 12 February 2015, and exhibited as Exhibit D in these proceedings, is void ab initio. (4) It is declared that the mortgage signed by Elizabeth Calleja in favour of Prime Capital Securities Pty Ltd and registered on 4 May 2015 bearing reference number AJ464656C is void. (5) It is declared that the Deed of Guarantee executed by Elizabeth Calleja is void. (6) It is declared that the Deed of Guarantee executed by Michael Calleja is void. (7) It is declared that the General Security Deed executed by Elizabeth Calleja is void. (8) It is declared that the General Security Deed executed by Michael Calleja is void. (9) It is declared that the General Security Deed executed by Michael Calleja on behalf of Calleja PJC Furniture Freighters Pty Ltd is void. (10) Prime Capital Securities Pty Ltd is directed to forthwith execute and lodge at Land and Property Information a discharge of the mortgage referred to in order (4) above, in the approved form. (11) Prime Capital Securities Pty Ltd is directed to forthwith take all necessary steps to discharge the registration of the General Security Deeds referred to in orders (7), (8), and (9) on the Personal Property Securities Register. (12) Prime Capital Securities Pty Ltd is to pay the defendant's costs of these proceedings, on an indemnity basis. (13) Any application for any further order as to costs by the Defendant is to be filed and served by 4pm on 11 December 2017. Any reply is to be filed and served by 4pm on 13 December 2017. Any such application will be dealt with on the papers in chambers. Catchwords: REAL PROPERTY – claim for possession – question of whether mortgagee can establish debt – question of misrepresentation as to loan contract – terms of purported contract - authority to disburse monies – question of validity of mortgage – claim of unconscionable conduct by lender Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Real Property Act 1900 (NSW) Cases Cited: Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301; [2002] FCA 62 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226 Qantas Airways Ltd v Cameron (1996) 66 FCR 246; [1996] FCA 1483 Category: Principal judgment Parties: Prime Capital Securities Pty Ltd (plaintiff; defendant, cross-defendant) Elizabeth Ann Calleja (defendant) Calleja PJC Furniture Freighters Pty Ltd (claimant / cross-claimant) Representation: Counsel: Mr M Young SC – plaintiff / defendant / cross-defendant Ms N Obrart – defendant / claimant / cross-claimant