Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868

Supreme Court New South Wales

Medium Neutral Citation: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Hearing dates: 4-8 March, 29-30 August 2019 Decision date: 20 December 2019 Jurisdiction: Equity Before: Robb J Decision: See pars 938 to 945. Direct the parties to confer and determine what short minutes of order will be appropriate to give effect to these reasons and to deal with the further conduct of these proceedings, as soon as is reasonably possible. Catchwords: MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee's duty to exercise power of sale in good faith — Consideration of whether the duty is fiduciary in nature — Whether the mortgagor's interests have been "sacrificed" — Whether the duty extends beyond the achievement of a fair price — Relevance of collateral purposes of the mortgagee, if any — Mortgagee not obliged to act as if mortgagor had a right of first refusal — Whether mortgagee obliged to provide payout figure to mortgagor — Reasonableness of mortgagee's refusal to provide complex payout figure in circumstances of mortgagor's many prior failed attempts at redemption

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee's duty to exercise power of sale in good faith — Consideration of alleged breaches of mortgagee's duty of good faith — Where breaches alleged relate to entry into contract for sale, terms of contract for sale, performance of contract for sale, variation of contract for sale, failure to investigate proposed transaction for redemption by mortgagor, providing finance to purchaser, misrepresentation to mortgagor of terms of contract for sale — In circumstances where the mortgagor was at no time ready willing and able to redeem the mortgage — Breach of duty only found in relation to words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale