Capital Securities XV Pty Ltd (in liquidation) v Calleja; Calleja PJC Furniture Freighters Pty Ltd v Capital Finance XV Pty Ltd [2020] NSWSC 301

Supreme Court New South Wales

Medium Neutral Citation: Capital Securities XV Pty Ltd (in liquidation) v Calleja; Calleja PJC Furniture Freighters Pty Ltd v Capital Finance XV Pty Ltd [2020] NSWSC 301 Hearing dates: 11 – 12 March 2020 Decision date: 26 March 2020 Jurisdiction: Common Law Before: Adamson J Decision: In proceedings 2016/155378 (1) The plaintiff's claim be dismissed pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 42.21(3). (2) Order that there be judgment for the defendant (Mrs Calleja) on the plaintiff's claim. (3) Grant the following relief to Mrs Calleja on the cross-claim: (a) Declare, pursuant to s 7(1)(b) of the Contracts Review Act 1980 (NSW) and s 12GM of the Australian Securities and Investments Commission Act 2001 (Cth), that the Deed of Guarantee between the plaintiff/cross-defendant (Prime) and Mrs Calleja is void. (b) Declare, pursuant to s 7(1)(b) of the Contracts Review Act 1980 (NSW) and s 12GM of the Australian Securities and Investments Commission Act 2001 (Cth), that the General Security Deed between Mrs Calleja, as grantor, and Prime, as secured party, is void. (c) Order Prime, pursuant to s 7(1)(d) of the Contracts Review Act 1980 (NSW) and s 12GD of the Australian Securities and Investments Commission Act 2001 (Cth), to execute and provide to the defendant's solicitor within 7 days hereof: (i) a discharge in registrable form of the mortgage granted by Mrs Calleja to Prime over the property known as 2213 Pacific Highway, Heatherbrae in Folio reference 511/587997; (ii) a notice of withdrawal of the caveat lodged in respect of the property known as 227 Minimbah Road, Minimbah in Folio reference 3/251789; (iii) a discharge of the General Deed of Security granted by Mrs Calleja to Prime in respect of her assets (the Calleja General Deed of Security). (d) If order (3)(c) above is not complied with, authorise and direct the Registrar of the Court to execute the documents described in order (3)(c)(i), (ii) and (iii) above on behalf of Prime. (e) Order Prime to provide, in registrable form, a financial change statement to remove the registration of the Calleja General Deed of Security from the register under the Personal Property Securities Act 2009 (NSW) within 7 days of receipt of a notice of demand from Mrs Calleja. (f) If order (3)(e) above is not complied with, authorise and direct the Registrar of the Court to execute on behalf of Prime such a financial change statement. (4) Order Prime to pay Mrs Calleja's costs of the proceedings, including the costs of the cross-claim and the first trial before Wilson J and any reserved costs, less the amount of $152,496.44. (5) Reserve the question whether such costs ought be ordered to be paid on an indemnity basis. (6) Grant liberty to apply on 3 days' notice.