Golden J Wealth Pty Ltd v AC Holdings Co Pty Limited [2019] NSWSC 1342

Supreme Court New South Wales

Medium Neutral Citation: Golden J Wealth Pty Ltd v AC Holdings Co Pty Limited [2019] NSWSC 1342 Hearing dates: 29 August 2019, 20 September 2019, 2 October 2019 Decision date: 04 October 2019 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Cross-claim dismissed Catchwords: CONTRACT – mortgage – construction – where Event of Default occurs if in the opinion of the Lender the Debtor suffers a material degradation in their ability to comply with the terms of the mortgage – whether opinion has to be reasonable or objectively available – whether the mortgagee held the necessary opinion – whether the opinion was held in good faith – default by Debtor in failing to pay an instalment of interest – whether mortgagee is precluded from relying on the default because it would constitute taking advantage of its own wrong – whether a provision that interest is payable at a Higher Rate but that a Lower Rate will be accepted if payment is made on time is an unenforceable penalty; HELD: opinion not required to be held reasonably or be objectively available, but in any event it was – opinion was held in good faith – mortgagee not precluded from relying on failure to pay interest – interest provision not an unenforceable penalty Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 Category: Principal judgment Parties: Golden J Wealth Pty Ltd - Plaintiff AC Holdings Co Pty Limited - Defendant Representation: Counsel: V. Bedrossian – Plaintiff E. Yasumoto – Defendant J. Knackstredt – for Super Vision Resources Ltd as amicus curiae