Aged Care Services v Macedonian Aged Care [2012] NSWSC 641

Aged Care Services v Macedonian Aged Care [2012] NSWSC 641

Kanning, as the equitable mortgagee with priority, is entitled to judgment for its debt, interest, and costs (on indemnity basis) charged on the mortgaged property. Orders for sale are appropriate, to be supervised by the Court due to the unregistered status of Kanning’s mortgage, and stays are granted to allow ACS short opportunity to complete an alternative sale. Indemnity costs are justified due to the delinquent conduct of ACS and MACAL in procuring consent orders without Kanning’s knowledge.

Jurisdiction
Australia
Judgment Date
07 June 2012
Procedural Posture
Equity Proceedings (cross Claim for Mortgage Priority and Sale) / Judgment After Hearing and Entry of Final Orders
Outcome
Judgment for cross-claimant (Kanning) against first cross-defendant (ACS). Orders for sale under the supervision of the Court, stayed for 14 days to allow ACS to sell. Costs awarded on the indemnity basis to Kanning.
Legal Topics
['priorities Between Mortgagees' 'equitable Mortgage' 'sale of Mortgaged Property' 'indemnity Costs' 'relevant Delinquency in Litigation']
['equity' 'real Property' 'civil Procedure'] ['priorities Between Mortgagees' 'equitable Mortgage' 'sale of Mortgaged Property' 'indemnity Costs' 'relevant Delinquency in Litigation']

Case Brief

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Procedural Posture

Equity Proceedings (cross Claim for Mortgage Priority and Sale) / Judgment After Hearing and Entry of Final Orders

Legal Issues

  1. 1 ['Who has priority between two mortgagees over the subject property when the mortgaged property value is insufficient for both claims?' 'On what terms should a sale of the mortgaged property be ordered?' 'Should costs be awarded on the indemnity basis due to the conduct of the parties?']

Ratio Decidendi

Kanning, as the equitable mortgagee with priority, is entitled to judgment for its debt, interest, and costs (on indemnity basis) charged on the mortgaged property. Orders for sale are appropriate, to be supervised by the Court due to the unregistered status of Kanning’s mortgage, and stays are granted to allow ACS short opportunity to complete an alternative sale. Indemnity costs are justified due to the delinquent conduct of ACS and MACAL in procuring consent orders without Kanning’s knowledge.

Court Disposition

Judgment for cross-claimant (Kanning) against first cross-defendant (ACS). Orders for sale under the supervision of the Court, stayed for 14 days to allow ACS to sell. Costs awarded on the indemnity basis to Kanning.

Orders

  • ['Judgment for cross-claimant against first cross-defendant.' 'Orders for sale under supervision of Court with Kanning to conduct sale, unless ACS completes sale within limited time as set out.' 'Orders stayed for 14 days to permit ACS to effect sale at or above $920,000, with specified deposit and terms.' 'Costs to...