Adelaide Bank Ltd v Property Builders Pty Ltd [2010] NSWSC 830

Adelaide Bank Ltd v Property Builders Pty Ltd [2010] NSWSC 830

The 31 March 2008 transaction was a roll-over and variation of the existing 2006 loan facility, not a new freestanding loan. The 2006 debt remained secured by the mortgage and guaranteed by Mr Phontos. Any equitable assignment between Eurofinance and AIF did not absolve Property Builders of its repayment obligations or detach the debt from the mortgage for Property Builders' benefit. Property Builders and Mr Phontos were given notice of the assignment before proceedings commenced. The registered transfer of the mortgage to Adelaide Bank carried with it the rights to the secured debt, and the s 12 notices were sufficient evidence that the guarantee had also been assigned. Adelaide Bank was...

Jurisdiction
Australia
Judgment Date
29 July 2010
Procedural Posture
Proceedings for Possession of Property and Money Judgment Arising From a Loan, Mortgage and Guarantee / Principal Judgment After Hearing
Outcome
Adelaide Bank Ltd was held entitled to an order for possession against Property Builders Pty Ltd and to judgment for the amount presently owing against Property Builders Pty Ltd and against Michael Phontos under his guarantee.
Legal Topics
['loan Agreement' 'mortgage Transfer' 'assignment of Secured Debt' 'notice of Assignment Under S 12 Conveyancing Act 1919' 'whether Later Loan Arrangement Varied or Replaced Earlier Agreement' 'mortgagee Remedies' 'liability of Guarantor']
['real Property' 'mortgages' 'guarantee and Indemnity' 'assignment'] ['loan Agreement' 'mortgage Transfer' 'assignment of Secured Debt' 'notice of Assignment Under S 12 Conveyancing Act 1919' 'whether Later Loan Arrangement Varied or Replaced Earlier Agreement' 'mortgagee Remedies' 'liability of Guarantor']

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Procedural Posture

Proceedings for Possession of Property and Money Judgment Arising From a Loan, Mortgage and Guarantee / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the 31 March 2008 roll-over supplanted and replaced the 2006 loan agreement or was a variation of the existing facility.' 'Whether resolutions of Eurofinance Capital Ltd and Advance Investment Finance No 2 Pty Ltd on 2 May 2008 effected an equitable assignment of the loan that detached the debt from the mortgage.' 'Whether notice of assignment under s 12 of the Conveyancing Act 1919 was given before commencement of proceedings.' 'Whether the transfer of the mortgage to Adelaide Bank Ltd carried with it the secured debt and enabled Adelaide Bank Ltd to obtain possession and money judgment.' 'Whether the guarantee by Michael Phontos was assigned to Adelaide Bank Ltd or otherwise enforceable by Adelaide Bank Ltd.']

Ratio Decidendi

The 31 March 2008 transaction was a roll-over and variation of the existing 2006 loan facility, not a new freestanding loan. The 2006 debt remained secured by the mortgage and guaranteed by Mr Phontos. Any equitable assignment between Eurofinance and AIF did not absolve Property Builders of its repayment obligations or detach the debt from the mortgage for Property Builders' benefit. Property Builders and Mr Phontos were given notice of the assignment before proceedings commenced. The registered transfer of the mortgage to Adelaide Bank carried with it the rights to the secured debt, and the s 12 notices were sufficient evidence that the guarantee had also been assigned. Adelaide Bank was...

Court Disposition

Adelaide Bank Ltd was held entitled to an order for possession against Property Builders Pty Ltd and to judgment for the amount presently owing against Property Builders Pty Ltd and against Michael Phontos under his guarantee.

Orders

  • ['Adelaide Bank Ltd is entitled to an order for possession against Property Builders Pty Ltd.' 'Adelaide Bank Ltd is entitled to judgment in whatever amount is presently owing against Property Builders Pty Ltd and against Michael Phontos under his Guarantee.' 'The parties are to bring in short minutes of order to...