CT Money Pty Ltd v AFIG Wholesale Pty Ltd [2008] NSWSC 1336

CT Money Pty Ltd v AFIG Wholesale Pty Ltd [2008] NSWSC 1336

Because DC's correspondent deed made the correspondent's rights personal and not capable of assignment or transfer, and because there was no effective assignment or novation of DC's rights under the DC sale agreement, CT Money acquired no right to commissions from AFIG or AMS in relation to the DC loans and assumed no obligations or liabilities to AFIG or AMS for those loans. CT Money's role in relation to the DC loans was only as delegate of DC, with any payments treated as payments at DC's direction, so AFIG and AMS had no relevant right to set off against CT Money and CT Money was not liable to repay the fees to them.

Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
Equity Division Dispute Concerning Mortgage Origination and Management Commissions and Cross Claim for Declarations / Judgment on Separate and Preliminary Questions
Outcome
Separate questions answered; the Court held that CT Money had no right to any commissions from AFIG and did not owe obligations or liability to AFIG or AMS in respect of the DC loans, while CT Money acted as delegate of DC Corporation.
Legal Topics
['assignment of Contractual Rights' 'assignment of Rights in Expectancy' 'mortgage Originator and Manager Commissions' 'delegation Under Correspondent Deed' 'set Off and Withholding of Trailing Commissions' 'separate Questions']
['personal Property' 'equity' 'contract Law'] ['assignment of Contractual Rights' 'assignment of Rights in Expectancy' 'mortgage Originator and Manager Commissions' 'delegation Under Correspondent Deed' 'set Off and Withholding of Trailing Commissions' 'separate Questions']

Case Brief

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Procedural Posture

Equity Division Dispute Concerning Mortgage Origination and Management Commissions and Cross Claim for Declarations / Judgment on Separate and Preliminary Questions

Legal Issues

  1. 1 ['Whether CT Money had any obligation or liability to AFIG or AMS for conduct occurring on or before 31 October 2005 in relation to loans originated by DC Corporation Australia Pty Ltd.' "Whether the DC sale agreement effectively assigned DC's loan book, including the right to receive commissions and manage the DC loans, to CT Money or its subsidiaries." 'Whether CT Money was entitled to trailing commissions from AFIG or AMS in respect of the DC loans under the CT correspondent deed or pricing agreements.' 'Whether CT Money was liable to repay fees received from AFIG or AMS by reason of agreement, unjust enrichment, mistake, quantum meruit, estoppel or misleading and deceptive conduct.' 'Whether CT Money acted as delegate of DC Corporation in relation to origination, administration, management and servicing of the DC Corporation loans.']

Ratio Decidendi

Because DC's correspondent deed made the correspondent's rights personal and not capable of assignment or transfer, and because there was no effective assignment or novation of DC's rights under the DC sale agreement, CT Money acquired no right to commissions from AFIG or AMS in relation to the DC loans and assumed no obligations or liabilities to AFIG or AMS for those loans. CT Money's role in relation to the DC loans was only as delegate of DC, with any payments treated as payments at DC's direction, so AFIG and AMS had no relevant right to set off against CT Money and CT Money was not liable to repay the fees to them.

Court Disposition

Separate questions answered; the Court held that CT Money had no right to any commissions from AFIG and did not owe obligations or liability to AFIG or AMS in respect of the DC loans, while CT Money acted as delegate of DC Corporation.

Orders

  • ['Question 1 answered No.' 'Question 2 answered No.' 'Question 3 did not arise.' 'Question 4 answered No.' 'Question 5 did not arise.' 'Question 6 answered No.' 'Question 7 did not arise.' 'Question 8 answered No in all parts.' 'Question 9 did not arise.' 'Question 10 did not arise.' 'Question 11 answered Yes in...