Permanent Trustee Australia Ltd & Anor v Akbarian & Ors [2002] NSWSC 385

Procedural Posture

Equity Proceedings Seeking Specific Performance of a Loan Agreement Concerning Mortgage Priority / Hearing and Final Orders

Legal Issues

1. 1 ['Whether the first and second defendants were required under the loan agreement to take all necessary steps to ensure that Permanent Trustee obtained a registered first mortgage over 35 Lancaster Avenue, St Ives.' 'Whether the defendants were required to cause Arash & Arezu Pty Ltd to execute a postponement of mortgage in proper form.' "Whether the plaintiffs were entitled to specific performance despite the issue having initially arisen because the plaintiffs' solicitor supplied the wrong form."]

Ratio Decidendi

Because the loan agreement required a registered first mortgage in favour of Permanent Trustee and the first and second defendants were obliged to do all things necessary to achieve that result, they had to cause Arash & Arezu Pty Ltd to execute a proper postponement of mortgage; the plaintiffs were therefore entitled to specific performance notwithstanding that the initial form error was attributable to the plaintiffs' solicitor.

Court Disposition

Plaintiffs granted declaratory and specific performance relief; first and second defendants ordered to pay the plaintiffs' costs.

Orders

• ['Declaration that the first and second plaintiffs are entitled to have the loan agreement between the first and second plaintiffs and the first and second defendants dated 21 November 2000 specifically performed and carried into execution.' 'The first and second defendants specifically perform and carry into...