National Australia Bank Limited v Sayed [2019] NSWSC 653

National Australia Bank Limited v Sayed [2019] NSWSC 653

The bank did not breach its equitable duty as mortgagee in possession. It obtained and tested multiple appraisals and valuations, investigated material discrepancies, was entitled to treat the watercourse development approval and associated remedial works as a complication reducing value, adequately marketed the property, and was not shown to have acted unconscionably or in bad faith by selling by tender and accepting the higher tender within the final valuation range. The evidence did not establish deficiency in the sale process or loss.

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Cross Claim for Breach of Fiduciary Duty by Mortgagee in Possession Exercising Power of Sale / Principal Judgment After Hearing of Remaining Cross Claim
Outcome
Cross-claim dismissed with costs.
Legal Topics
['mortgagee in Possession' 'power of Sale' 'fiduciary Duty of Mortgagee' 'sale of Mortgaged Property' 'market Value and Valuations' 'development Approvals']
['mortgages and Securities' 'equity' 'property Law'] ['mortgagee in Possession' 'power of Sale' 'fiduciary Duty of Mortgagee' 'sale of Mortgaged Property' 'market Value and Valuations' 'development Approvals']

Case Brief

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Procedural Posture

Cross Claim for Breach of Fiduciary Duty by Mortgagee in Possession Exercising Power of Sale / Principal Judgment After Hearing of Remaining Cross Claim

Legal Issues

  1. 1 ['Whether National Australia Bank Limited breached its equitable duty to Mr Sayed as mortgagee in possession when selling the Corrimal property.' 'Whether the bank failed to take reasonable precautions to obtain a proper price for the Corrimal property.' 'Whether the sale by tender, marketing campaign, valuations obtained and treatment of development approvals were deficient.' 'Whether the Corrimal property was sold at an undervalue causing loss.']

Ratio Decidendi

The bank did not breach its equitable duty as mortgagee in possession. It obtained and tested multiple appraisals and valuations, investigated material discrepancies, was entitled to treat the watercourse development approval and associated remedial works as a complication reducing value, adequately marketed the property, and was not shown to have acted unconscionably or in bad faith by selling by tender and accepting the higher tender within the final valuation range. The evidence did not establish deficiency in the sale process or loss.

Court Disposition

Cross-claim dismissed with costs.

Orders

  • ['The cross-claim is dismissed.' "The cross-claimant is to pay the cross-defendant's costs."]