Manly Property Holdings Holdings Pty Ltd v Lisker Pty Ltd & Anor [2017] NSWSC 1395

Manly Property Holdings Holdings Pty Ltd v Lisker Pty Ltd & Anor [2017] NSWSC 1395

MPH is unable to transfer unencumbered title to the Excluded Lots as required by the contract, not due to its own breach, and is therefore entitled to satisfy Lisker's beneficial interest and mortgage by paying $1,500,000, after which MPH may redeem the mortgage and proceed to sell the property; entry into the MPH-MOG Contract does not constitute a breach of Further Condition 38 since payment to Lisker is in accordance with the contract.

Parties
Plaintiff/first Cross Defendant: Manly Property Holdings Pty Ltd; First Defendant/cross Claimant: Lisker Pty Ltd; Second Cross Defendant: Bank of Queensland Limited; Second Defendant: Steyne Developments Pty Ltd; Third Cross Defendant: Grindon Pty Limited as trustee for the Ekins Family Superannuation Fund; Fourth Cross Defendant: David Stuart Gordon Ekins; Fifth Cross Defendant: Paul Brendan Hannan; Sixth Cross Defendant: Belinda Jane Hannan; Seventh Cross Defendant: Merran Grace Cooper; Eighth Cross Defendant: Kenny Jackman; Ninth Cross Defendant: David Nicholas Foodey; Tenth Cross Defendant: Robert John Collister Edwards; Eleventh Cross Defendant: Craig Oswald Haskins; Twelfth Cross Defendant: George Athol Murray Clapham and Lisa Jane Clapham as trustees for the Clapham Family Superannuation Fund; Thirteenth Cross Defendant: George Athol Murray Clapham; Fourteenth Cross Defendant: Lisa Jane Clapham; Fifteenth Cross Defendant: Harold Murray Clapham
Jurisdiction
Australia
Judgment Date
20 October 2017
Procedural Posture
Equity Real Property / Principal Judgment / Final Hearing
Outcome
Declaration granted: MPH entitled to redeem the Lisker mortgage by payment of $1,500,000 and sell the property; parties to bring in short minutes of order; leave granted to resolve remaining issues including costs.
Legal Topics
Contract for the Sale of Land, Mortgage Redemption, Developer/vendor Obligations, Beneficial Interest, Trust, Commercial Contract Interpretation
Real Property Contract Law Equity Contract for the Sale of Land Mortgage Redemption Developer/vendor Obligations Beneficial Interest Trust +1 more

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Parties

Manly Property Holdings Pty Ltd

Plaintiff/first Cross Defendant

Lisker Pty Ltd

First Defendant/cross Claimant

Bank of Queensland Limited

Second Cross Defendant

Steyne Developments Pty Ltd

Second Defendant

Grindon Pty Limited as trustee for the Ekins Family Superannuation Fund

Third Cross Defendant

David Stuart Gordon Ekins

Fourth Cross Defendant

Paul Brendan Hannan

Fifth Cross Defendant

Belinda Jane Hannan

Sixth Cross Defendant

Merran Grace Cooper

Seventh Cross Defendant

Kenny Jackman

Eighth Cross Defendant

David Nicholas Foodey

Ninth Cross Defendant

Robert John Collister Edwards

Tenth Cross Defendant

Craig Oswald Haskins

Eleventh Cross Defendant

George Athol Murray Clapham and Lisa Jane Clapham as trustees for the Clapham Family Superannuation Fund

Twelfth Cross Defendant

George Athol Murray Clapham

Thirteenth Cross Defendant

Lisa Jane Clapham

Fourteenth Cross Defendant

Harold Murray Clapham

Fifteenth Cross Defendant

Procedural Posture

Equity Real Property / Principal Judgment / Final Hearing

Legal Issues

  1. 1 Whether the developer (MPH) is entitled to redeem the mortgage to Lisker upon payment of $1,500,000 and sell the property
  2. 2 Whether inability to transfer unencumbered title to the Excluded Lots entitles MPH to pay compensation under the contract
  3. 3 Whether the vendor (Lisker) can acquire the first mortgage and exercise its power of sale

Ratio Decidendi

MPH is unable to transfer unencumbered title to the Excluded Lots as required by the contract, not due to its own breach, and is therefore entitled to satisfy Lisker's beneficial interest and mortgage by paying $1,500,000, after which MPH may redeem the mortgage and proceed to sell the property; entry into the MPH-MOG Contract does not constitute a breach of Further Condition 38 since payment to Lisker is in accordance with the contract.

Court Disposition

Declaration granted: MPH entitled to redeem the Lisker mortgage by payment of $1,500,000 and sell the property; parties to bring in short minutes of order; leave granted to resolve remaining issues including costs.

Orders

  • Order parties to bring in short minutes of order to give effect to these reasons.
  • Grant leave to approach Associate to fix date for resolution of remaining contests, including costs.