Across Australia Finance Pty Ltd v Kalls & Ors [2008] NSWSC 783

Across Australia Finance Pty Ltd v Kalls & Ors [2008] NSWSC 783

The proceeds under the Court's control should be apportioned so that the impact of the prior mortgagee’s satisfaction falls rateably across proceeds of both securities, thus enabling Mr Hill to marshall against part of the Pyrmont proceeds. Expenses reasonably and properly incurred in producing the disputed fund...

Source-derived case information.

Parties
Plaintiff: Across Australia Finance Pty Ltd; First Defendant: Con Kalls; Second Defendant: National Australia Bank Limited (NAB); Third Defendant: Mr Hill; Fourth Defendant: St George Bank; Fifth Defendant: SunCorp Metway
Jurisdiction
Australia
Judgment Date
04 August 2008
Procedural Posture
Judicial Sale Proceedings / Post Sale, Determination of Marshalling and Distribution of Sale Proceeds
Outcome
Proceedings reserved for further consideration. Liberty to apply.
Legal Topics
Mortgages, Marshalling, Apportionment of Proceeds, Priority of Securities
Equity Property Law Mortgages Marshalling Apportionment of Proceeds Priority of Securities

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Parties

Across Australia Finance Pty Ltd

Plaintiff

Con Kalls

First Defendant

National Australia Bank Limited (NAB)

Second Defendant

Mr Hill

Third Defendant

St George Bank

Fourth Defendant

SunCorp Metway

Fifth Defendant

Procedural Posture

Judicial Sale Proceedings / Post Sale, Determination of Marshalling and Distribution of Sale Proceeds

Legal Issues

  1. 1 Whether marshalling principles apply to apportion proceeds as between puisne mortgagees
  2. 2 Whether Mr Hill is entitled to a part of the Pyrmont sale proceeds under marshalling
  3. 3 What charges and expenses have priority in distribution

Ratio Decidendi

The proceeds under the Court's control should be apportioned so that the impact of the prior mortgagee’s satisfaction falls rateably across proceeds of both securities, thus enabling Mr Hill to marshall against part of the Pyrmont proceeds. Expenses reasonably and properly incurred in producing the disputed fund should have priority. The details and calculations await further consideration, pending assessment of appropriate charges.

Court Disposition

Proceedings reserved for further consideration. Liberty to apply.

Orders

  • The proceedings are reserved for further consideration.
  • Liberty to apply.