Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors (No 2) [2020] NSWSC 586

Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors (No 2) [2020] NSWSC 586

Clause 2.3 of the Memorandum of Common Provisions does not constitute an acknowledgement of receipt of funds, but is a performance clause conditional on actual receipt; no funds were actually advanced or received by the mortgagor, thus the Registered Mortgage does not secure anything in favour of the Mortgagees against the Lands or proceeds.

Jurisdiction
Australia
Judgment Date
19 May 2020
Procedural Posture
Equity / Answer to Separate Question Following Reopening for Limited Submissions
Outcome
Separate question answered: Registered Mortgage does not secure anything in favour of the Mortgagees against the Lands or proceeds of sale held in Court.
Legal Topics
['torrens Title' 'indefeasibility of Title' 'mortgage Interpretation' 'fraud Affecting Mortgage' 'effect of Registration']
['land Law' 'property Law'] ['torrens Title' 'indefeasibility of Title' 'mortgage Interpretation' 'fraud Affecting Mortgage' 'effect of Registration']

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Procedural Posture

Equity / Answer to Separate Question Following Reopening for Limited Submissions

Legal Issues

  1. 1 ['Whether the Registered Mortgage secures anything in favour of the Mortgagees against the Lands and proceeds held in Court' 'Proper construction of clause 2.3 of the Memorandum of Common Provisions (MCP)' 'Effect of indefeasibility where advance never received by mortgagor']

Ratio Decidendi

Clause 2.3 of the Memorandum of Common Provisions does not constitute an acknowledgement of receipt of funds, but is a performance clause conditional on actual receipt; no funds were actually advanced or received by the mortgagor, thus the Registered Mortgage does not secure anything in favour of the Mortgagees against the Lands or proceeds.

Court Disposition

Separate question answered: Registered Mortgage does not secure anything in favour of the Mortgagees against the Lands or proceeds of sale held in Court.

Orders

  • ['Order nunc pro tunc pursuant to UCPR Pt 36 r 36.16 granting leave to reopen hearing limited to written submissions on the Indefeasible Acknowledgement Argument']