Zhou v Truong [2018] NSWSC 2051

Zhou v Truong [2018] NSWSC 2051

Clause 3 of the deed of variation, particularly its use of the word "security", expressly created an equitable charge over the Property in favour of the plaintiffs; alternatively it did so by implication. Because the first and second defendants were in default, the plaintiffs were entitled to money judgment and, as equitable chargees, to judicial sale of the Property with vacant possession.

Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Equity Real Property List Proceeding to Enforce Payment of a Debt by Judicial Sale of Property / Principal Judgment After Hearing in the Absence of the First and Second Defendants; Third Defendant Entered a Submitting Appearance Save as to Costs
Outcome
Orders made for money judgment and judicial sale of property.
Legal Topics
['equitable Charges and Liens' 'enforceability of Equitable Charge' 'judicial Sale' 'vacant Possession' 'mortgage Priority']
['equity' 'real Property'] ['equitable Charges and Liens' 'enforceability of Equitable Charge' 'judicial Sale' 'vacant Possession' 'mortgage Priority']

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Procedural Posture

Equity Real Property List Proceeding to Enforce Payment of a Debt by Judicial Sale of Property / Principal Judgment After Hearing in the Absence of the First and Second Defendants; Third Defendant Entered a Submitting Appearance Save as to Costs

Legal Issues

  1. 1 ['Whether clause 3 of the deed of variation created an equitable charge over the Kellyville Property in favour of the plaintiffs.' 'Whether the plaintiffs, as equitable chargees, were entitled to an order for judicial sale upon default.' 'Whether enforcement of the equitable charge by judicial sale could include an order for vacant possession.']

Ratio Decidendi

Clause 3 of the deed of variation, particularly its use of the word "security", expressly created an equitable charge over the Property in favour of the plaintiffs; alternatively it did so by implication. Because the first and second defendants were in default, the plaintiffs were entitled to money judgment and, as equitable chargees, to judicial sale of the Property with vacant possession.

Court Disposition

Orders made for money judgment and judicial sale of property.

Orders

  • ['Judgment for the plaintiffs against the first and second defendants in the amount of $1,781,939.70.' 'Order for judicial sale of the Kellyville Property under the supervision of the Court.' 'Order for vacant possession as part of the order for sale.']