Gresham Property Investments Limited v Global Consulting Services Pty Limited; Global Consulting Services Pty Limited v Gresham Property Investments Limited [2018] NSWSC 141

Gresham Property Investments Limited v Global Consulting Services Pty Limited; Global Consulting Services Pty Limited v Gresham Property Investments Limited [2018] NSWSC 141

Gresham holds priority under the Amended Deed over GCS and RGN in relation to sale proceeds referable to lots belonging to PV, but not over amounts relating to other property. The Amended Deed does not affect RGN as it was not a party; the evidence does not establish exceptions to equal contribution among co-guarantors. The liabilities are co-ordinate and must be divided equally among PV, Pierora and PVS5, with any shortfall from PVS5 to be equally borne by PV and Pierora. GCS is entitled to remaining proceeds from Pierora property, not PV's property.

Parties
Plaintiff | First Cross Defendant: Gresham Property Investments Limited; First Defendant | First Cross Claimant: Global Consulting Services Pty Limited; Second Defendant | Second Cross Claimant: RGN Pty Limited; Third Defendant | Third Cross Defendant: Pierora Pty Limited (In Liq) (Receivers & Managers Appointed) (Controller Appointed); Fourth Defendant | Fourth Cross Defendant: PVS5 Holding Co Pty Limited (Receivers & Managers Appointed) (Controller Appointed); Second Cross Defendant: Pentridge Village Pty Limited (Receivers And Managers Appointed) (In Liquidation)
Jurisdiction
Australia
Judgment Date
21 February 2018
Procedural Posture
Principal Judgment / Final Judgment, Pending Orders
Outcome
Substantive judgment in favour of Gresham with directions for parties to bring in short minutes of order within 28 days; pending final orders.
Legal Topics
Guarantee and Indemnity, Contribution Among Co Guarantors, Priority Under Intercreditor Deeds
Equity Commercial Law Guarantee and Indemnity Contribution Among Co Guarantors Priority Under Intercreditor Deeds

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Parties

Gresham Property Investments Limited

Plaintiff | First Cross Defendant

Global Consulting Services Pty Limited

First Defendant | First Cross Claimant

RGN Pty Limited

Second Defendant | Second Cross Claimant

Pierora Pty Limited (In Liq) (Receivers & Managers Appointed) (Controller Appointed)

Third Defendant | Third Cross Defendant

PVS5 Holding Co Pty Limited (Receivers & Managers Appointed) (Controller Appointed)

Fourth Defendant | Fourth Cross Defendant

Pentridge Village Pty Limited (Receivers And Managers Appointed) (In Liquidation)

Second Cross Defendant

Procedural Posture

Principal Judgment / Final Judgment, Pending Orders

Legal Issues

  1. 1 Whether Gresham is entitled to priority in payment from sale proceeds over GCS and RGN under the Amended Intercreditor Deed
  2. 2 Whether, as between co-guarantors PV, Pierora and PVS5, liability for CVS Mezz debt should fall first on PV, and whether any exceptions to equal contribution apply
  3. 3 Whether differences between interests of guarantors prevent liabilities from being co-ordinate

Ratio Decidendi

Gresham holds priority under the Amended Deed over GCS and RGN in relation to sale proceeds referable to lots belonging to PV, but not over amounts relating to other property. The Amended Deed does not affect RGN as it was not a party; the evidence does not establish exceptions to equal contribution among co-guarantors. The liabilities are co-ordinate and must be divided equally among PV, Pierora and PVS5, with any shortfall from PVS5 to be equally borne by PV and Pierora. GCS is entitled to remaining proceeds from Pierora property, not PV's property.

Court Disposition

Substantive judgment in favour of Gresham with directions for parties to bring in short minutes of order within 28 days; pending final orders.

Orders

  • Gresham is entitled to priority over GCS and RGN in respect of sale proceeds referable to PV lots after discharge of CVS Senior and CVS Mezz debts.
  • Calculation of entitlement should apportion CVS Mezz liability equally among PV, Pierora and PVS5, with shortfalls borne equally by PV and Pierora.