Rogers v Rogers [2020] NSWSC 392

Rogers v Rogers [2020] NSWSC 392

No binding or enforceable equitable charge was created because the Loan Agreement and Charge was never executed, delivered, or known to the plaintiff and was not concerned with a concluded loan; property was not made liable for any liability to the plaintiff as chargee, and any such charge would only arise upon the making of a loan under a binding agreement, which did not occur.

Jurisdiction
Australia
Judgment Date
09 April 2020
Procedural Posture
Equity Principal Judgment / Determination of Separate Questions in Advance of Other Issues; Judgment at First Instance
Outcome
Proceedings dismissed; separate questions answered adversely to plaintiff; Amended Statement of Cross-Claim dismissed
Legal Topics
['equitable Charge' 'loan Agreements' 'caveats' 'bankruptcy' 'enforcement of Security' 'evidence of Intention to Charge' 'setting Aside Transactions on Equitable Grounds']
['equity' 'mortgages and Securities'] ['equitable Charge' 'loan Agreements' 'caveats' 'bankruptcy' 'enforcement of Security' 'evidence of Intention to Charge' 'setting Aside Transactions on Equitable Grounds']

Case Brief

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Procedural Posture

Equity Principal Judgment / Determination of Separate Questions in Advance of Other Issues; Judgment at First Instance

Legal Issues

  1. 1 ['Whether the execution of the Loan Agreement and Charge created a binding and enforceable equitable charge over the property in favour of the plaintiff' 'Whether the first and second defendants are bound by the Loan Agreement and Charge' 'Whether the cross-claimant is entitled to set aside the charge on equitable grounds' 'Whether any loan was made by the plaintiff to the first and/or second defendant']

Ratio Decidendi

No binding or enforceable equitable charge was created because the Loan Agreement and Charge was never executed, delivered, or known to the plaintiff and was not concerned with a concluded loan; property was not made liable for any liability to the plaintiff as chargee, and any such charge would only arise upon the making of a loan under a binding agreement, which did not occur.

Court Disposition

Proceedings dismissed; separate questions answered adversely to plaintiff; Amended Statement of Cross-Claim dismissed

Orders

  • ['Proceedings dismissed' 'Amended Statement of Cross-Claim dismissed' 'Parties to confer regarding costs and provide written submissions if agreement not reached within designated time']