Winau Australia Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612

Winau Australia Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612

The applicants do not have a strong prima facie case on estoppel and, coupled with the respondents' reasonable prospects on the Notation Defence, only an arguable case is established. The absence of an effective undertaking as to damages by the applicants precludes the grant of injunctive relief. Accordingly, the proceeds of sale should be paid out to 183 Eastwood, subject to a requirement for advance notice before any distribution to unitholders.

Jurisdiction
Australia
Judgment Date
26 May 2021
Procedural Posture
Application for Injunctive Relief in Equity Proceedings / Interlocutory; Determination of Notice of Motion for Injunction Regarding Proceeds of Sale
Outcome
Application for injunctive relief dismissed; proceeds of sale to be paid out to 183 Eastwood Pty Ltd, subject to notification requirement.
Legal Topics
['injunctive Relief' 'mortgages' 'estoppel' 'trusts' 'proceeds of Sale' 'undertaking as to Damages' 'interlocutory Injunctions' 'notation Agreement']
['equity'] ['injunctive Relief' 'mortgages' 'estoppel' 'trusts' 'proceeds of Sale' 'undertaking as to Damages' 'interlocutory Injunctions' 'notation Agreement']

Case Brief

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Procedural Posture

Application for Injunctive Relief in Equity Proceedings / Interlocutory; Determination of Notice of Motion for Injunction Regarding Proceeds of Sale

Legal Issues

  1. 1 ['Whether interlocutory injunctive relief restraining 183 Eastwood from disbursing monies paid into court should be granted to the applicants (second mortgagees)' 'Whether the applicants are entitled to rely on an estoppel to enforce their claim against the proceeds of sale' "Whether the so-called Notation Agreement precludes the applicants' claims regarding the second mortgage" 'Whether the applicants have provided an effective undertaking as to damages']

Ratio Decidendi

The applicants do not have a strong prima facie case on estoppel and, coupled with the respondents' reasonable prospects on the Notation Defence, only an arguable case is established. The absence of an effective undertaking as to damages by the applicants precludes the grant of injunctive relief. Accordingly, the proceeds of sale should be paid out to 183 Eastwood, subject to a requirement for advance notice before any distribution to unitholders.

Court Disposition

Application for injunctive relief dismissed; proceeds of sale to be paid out to 183 Eastwood Pty Ltd, subject to notification requirement.

Orders

  • ['The proceeds of sale of the property located at 179-183 Shaftsbury Road, Eastwood, NSW 2122 paid into Court, and any interest thereon accrued, is to be paid out to the Third Plaintiff (183 Eastwood Pty Ltd).' "In the event that the Third Plaintiff intends to distribute any of the funds to the unitholders of the...