Camden Nurseries Pty Ltd v Aussie Growers (Aust) Pty Ltd [2017] NSWSC 1770

Camden Nurseries Pty Ltd v Aussie Growers (Aust) Pty Ltd [2017] NSWSC 1770

The September 2017 Agreement was a sham as it did not reflect the true agreement between the parties and was not intended to have legal operation according to its terms; accordingly, it was incapable of conferring a caveatable interest on the sixth defendant. The plaintiffs, as equitable mortgagees, were entitled to orders for possession and sale of the property, and for withdrawal of the caveat, with associated cost orders.

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Principal Judgment / Final Judgment and Orders
Outcome
Orders made in favour of the plaintiffs, granting declarations, possession, writ of possession, withdrawal of caveat, and costs.
Legal Topics
['sham Transactions' 'equitable Mortgage' 'caveats' "mortgagee's Rights to Sale and Possession" 'costs Determination']
['contract' 'real Property' 'bankruptcy' 'costs'] ['sham Transactions' 'equitable Mortgage' 'caveats' "mortgagee's Rights to Sale and Possession" 'costs Determination']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Principal Judgment / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the September 2017 Agreement constituted a sham transaction without legal effect' 'Whether the sixth defendant had a caveatable interest in the property by virtue of the sham agreement' 'Whether the plaintiffs were entitled to exercise power of sale and possession of the mortgaged property' 'Orders for costs']

Ratio Decidendi

The September 2017 Agreement was a sham as it did not reflect the true agreement between the parties and was not intended to have legal operation according to its terms; accordingly, it was incapable of conferring a caveatable interest on the sixth defendant. The plaintiffs, as equitable mortgagees, were entitled to orders for possession and sale of the property, and for withdrawal of the caveat, with associated cost orders.

Court Disposition

Orders made in favour of the plaintiffs, granting declarations, possession, writ of possession, withdrawal of caveat, and costs.

Orders

  • ["Declaration of plaintiffs' unregistered mortgage security over third defendant's interest in the property for $444,950.18 plus interest" "Declaration of plaintiffs' right to exercise power of sale of third defendant's share" "Declaration of plaintiffs' and fourth defendant's (with consent) entitlement to...