Agnvet Services v Carter [2009] NSWSC 753

Agnvet Services v Carter [2009] NSWSC 753

The credit application terms charged the first defendant's land and obliged him, on demand, to execute a mortgage or other security as required by the plaintiff. Given the evidence that the first defendant was unavailable and unlikely to comply, and guided by s 94 of the Civil Procedure Act 2005 and Gaszewski, it was appropriate to order execution and delivery of the mortgage and to make a conditional order authorising execution by another person if he failed to comply.

Jurisdiction
Australia
Judgment Date
23 July 2009
Procedural Posture
Application for Specific Performance of an Agreement to Execute a Mortgage and Ancillary Declarations and Orders / Ex Tempore Principal Judgment in the Equity Division
Outcome
Declarations and orders made in accordance with paragraphs 1 to 9 as amended of the short minutes of order initialled by the judge and dated 23 July 2009.
Legal Topics
['specific Performance of Agreement to Give Mortgage' 'order for Registrar to Execute Mortgage on Non Compliance' 'service of Orders' 'civil Procedure Act 2005 S 94']
['mortgages' 'civil Procedure' 'equity'] ['specific Performance of Agreement to Give Mortgage' 'order for Registrar to Execute Mortgage on Non Compliance' 'service of Orders' 'civil Procedure Act 2005 S 94']

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Procedural Posture

Application for Specific Performance of an Agreement to Execute a Mortgage and Ancillary Declarations and Orders / Ex Tempore Principal Judgment in the Equity Division

Legal Issues

  1. 1 ['Whether the first defendant was obliged under clause 10 of the credit application terms and conditions to execute a mortgage in favour of the plaintiff over land owned by him.' 'Whether the Court should make an order under s 94 of the Civil Procedure Act 2005 authorising execution of the mortgage by another person if the first defendant failed to comply.' "Whether service by delivery of a sealed copy of the orders to the first defendant's brother was sufficient for the purposes of the execution and delivery order, excluding any application for contempt."]

Ratio Decidendi

The credit application terms charged the first defendant's land and obliged him, on demand, to execute a mortgage or other security as required by the plaintiff. Given the evidence that the first defendant was unavailable and unlikely to comply, and guided by s 94 of the Civil Procedure Act 2005 and Gaszewski, it was appropriate to order execution and delivery of the mortgage and to make a conditional order authorising execution by another person if he failed to comply.

Court Disposition

Declarations and orders made in accordance with paragraphs 1 to 9 as amended of the short minutes of order initialled by the judge and dated 23 July 2009.

Orders

  • ['The first defendant was to execute and deliver a mortgage in favour of the plaintiff over real property registered in his name.' 'A conditional order under s 94 of the Civil Procedure Act 2005 was made to address failure by the first defendant to comply with the order to execute the mortgage.' "Delivery of a...