Ageist Pty Ltd v More Than Skin Pty Ltd [2020] NSWSC 1117

Ageist Pty Ltd v More Than Skin Pty Ltd [2020] NSWSC 1117

The Court found multiple serious questions to be tried regarding the validity of the assignment, potential breach of duty of good faith, possible penalty interest, and enforceability of default interest under the Contracts Review Act. The interlocutory decision is withheld pending undertakings as to damages, as neither party has demonstrated ability to compensate the other for loss, and balance of convenience cannot be satisfactorily resolved without such undertaking.

Jurisdiction
Australia
Judgment Date
21 August 2020
Procedural Posture
Interlocutory Application Caveat Removal / Post Hearing, Reasons for Judgment; Orders Pending Receipt of Undertakings as to Damages
Outcome
Decision deferred; parties to provide undertakings as to damages to support interlocutory orders.
Legal Topics
['removal of Caveat' "mortgagee's Power of Sale" 'good Faith in Mortgage Sales' 'penalties and Default Interest' 'assignment of Debt' 'afca Scheme' 'contracts Review Act']
['land Law' 'equity'] ['removal of Caveat' "mortgagee's Power of Sale" 'good Faith in Mortgage Sales' 'penalties and Default Interest' 'assignment of Debt' 'afca Scheme' 'contracts Review Act']

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Procedural Posture

Interlocutory Application Caveat Removal / Post Hearing, Reasons for Judgment; Orders Pending Receipt of Undertakings as to Damages

Legal Issues

  1. 1 ['Whether there is a serious question to be tried regarding the assignment of the second mortgage and caveat removal' 'Whether Ageist breached its duty of good faith in the manner of the sale' 'Whether the assignment of the mortgage debt to Ageist, circumventing AFCA Scheme, is legally valid' 'Whether default interest may be a penalty or unenforceable under the Contracts Review Act' 'Whether the balance of convenience favours removal or retention of the caveat']

Ratio Decidendi

The Court found multiple serious questions to be tried regarding the validity of the assignment, potential breach of duty of good faith, possible penalty interest, and enforceability of default interest under the Contracts Review Act. The interlocutory decision is withheld pending undertakings as to damages, as neither party has demonstrated ability to compensate the other for loss, and balance of convenience cannot be satisfactorily resolved without such undertaking.

Court Disposition

Decision deferred; parties to provide undertakings as to damages to support interlocutory orders.

Orders

  • ['Little Town Pty Ltd ordered to withdraw its caveat forthwith; final orders regarding Ageist and Murabito caveats to be determined upon receipt of satisfactory undertakings as to damages.']