Adelaide Bank Ltd v Property Builders Pty Ltd [2009] NSWSC 849

Adelaide Bank Ltd v Property Builders Pty Ltd [2009] NSWSC 849

The debt from Property Developers to Eurofinance was assigned to the plaintiff by virtue of the terms of the mortgage and ss 51 and 52 of the Real Property Act, subject to notice; however, because the plaintiff did not give effective express written notice of assignment to the debtor prior to commencement of proceedings as required by s 12 Conveyancing Act 1919, it lacked standing to enforce the debt or recover possession. The guarantee was not shown to have been assigned with the debt.

Jurisdiction
Australia
Judgment Date
07 September 2009
Procedural Posture
Civil / Application for Summary Judgment
Outcome
Plaintiff's application for summary judgment dismissed.
Legal Topics
['assignment of Debt' 'notice of Assignment' 'remedies of the Mortgagee' 'transfer of Mortgage' 'guarantee Assignment']
['mortgages' 'guarantee and Indemnity'] ['assignment of Debt' 'notice of Assignment' 'remedies of the Mortgagee' 'transfer of Mortgage' 'guarantee Assignment']

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Procedural Posture

Civil / Application for Summary Judgment

Legal Issues

  1. 1 ['Whether the debt secured by a mortgage is assigned upon transfer of the mortgage' 'Whether notice of assignment was properly given to the debtor' 'Whether the guarantee was assigned with the principal debt']

Ratio Decidendi

The debt from Property Developers to Eurofinance was assigned to the plaintiff by virtue of the terms of the mortgage and ss 51 and 52 of the Real Property Act, subject to notice; however, because the plaintiff did not give effective express written notice of assignment to the debtor prior to commencement of proceedings as required by s 12 Conveyancing Act 1919, it lacked standing to enforce the debt or recover possession. The guarantee was not shown to have been assigned with the debt.

Court Disposition

Plaintiff's application for summary judgment dismissed.

Orders

  • ["The Plaintiff's Notice of Motion for summary judgment is dismissed." "The Plaintiff is to pay the Defendants' costs of the Notice of Motion."]