Global Consulting Services Pty Ltd v Gresham Property Investments Ltd [2018] NSWCA 255

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Global Consulting Services Pty Ltd v Gresham Property Investments Ltd [2018] NSWCA 255 Hearing dates: 17 September 2018 Decision date: 06 November 2018 Before: Bathurst CJ at [1]; McColl JA at [2]; Leeming JA at [3]. Decision: 1. Appeal allowed.

2. Set aside the orders made on 19 March 2018 and 11 April 2018, and in lieu thereof declare that:

(a) in respect of their indebtedness under guarantees and securities given to CVS Mezz, PV was, as between PV and Pierora and PVS5, a primary obligor of CVS Mezz, and Pierora and PVS5 were secondary obligors.

(b) CVS Mezz is to be paid in the following order:

(i) first, from the net sale proceeds received by the receiver from the sale of lots attributable to PV; and

(ii) secondly, after exhaustion of the PV sale proceeds, rateably from net sale proceeds received by the receivers from the sale of lots attributable to Pierora and PVS5.

(c) If the receivers hold a residue after payment to CVS Mezz, Pierora and PVS5 are to receive from the residue (rateably) up to the full amount referable to the sale by the receiver of lots attributable to them respectively in priority to PV.

3. Order that the first respondent Gresham pay the appellants' costs at first instance and of this appeal. Catchwords: EQUITY – contribution – circumstances when contribution excluded – consideration of scope of common intention exception – significance of equity's regard for substance over form – Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 considered