Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors [2020] NSWSC 434

Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors [2020] NSWSC 434

The registered mortgages did not secure any advance or obligation because no funds were advanced to or at the direction of 183 Eastwood. The deposit of funds into a fraudulently opened account in the company’s name did not constitute an advance to the mortgagor. Therefore, the mortgages did not secure any debt, and the mortgagor (183 Eastwood) was entitled to the proceeds of sale of the mortgaged property.

Jurisdiction
Australia
Judgment Date
22 April 2020
Procedural Posture
Equity Proceedings / Determination of Separate Question After Interlocutory Argument
Outcome
Separate question answered in negative; mortgages do not secure any advance or obligation; proceeds of sale ordered to be paid to mortgagor.
Legal Topics
['torrens Title' 'indefeasibility of Title' 'mortgages' 'fraud in Conveyancing']
['land Law' 'equity' 'banking and Finance'] ['torrens Title' 'indefeasibility of Title' 'mortgages' 'fraud in Conveyancing']

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

Equity Proceedings / Determination of Separate Question After Interlocutory Argument

Legal Issues

  1. 1 ['Whether a registered mortgage secures any advance to the mortgagor or obligation of the guarantor when the funds are not received by or at the direction of the mortgagor due to fraud' 'Entitlement to proceeds of sale of mortgaged property where mortgage registered by fraud' 'Construction of mortgage deeds where advance not received']

Ratio Decidendi

The registered mortgages did not secure any advance or obligation because no funds were advanced to or at the direction of 183 Eastwood. The deposit of funds into a fraudulently opened account in the company’s name did not constitute an advance to the mortgagor. Therefore, the mortgages did not secure any debt, and the mortgagor (183 Eastwood) was entitled to the proceeds of sale of the mortgaged property.

Court Disposition

Separate question answered in negative; mortgages do not secure any advance or obligation; proceeds of sale ordered to be paid to mortgagor.

Orders

  • ['Registered mortgage does not secure anything in favour of the Mortgagees against the Lands or sale proceeds.' 'Mortgagor entitled to proceeds of sale of mortgaged property.']