Dynamic Supplies Pty Ltd v Gina Lorna Morrison & 1 Or [2005] NSWSC 1307

Dynamic Supplies Pty Ltd v Gina Lorna Morrison & 1 Or [2005] NSWSC 1307

The Court held that the guarantee containing the charging clause executed by Ms Morrison gave rise to an equitable charge in favour of Dynamic over her land at 5 Fishburn Court, Terrigal, for her liabilities under the guarantee. Trade occurred on the faith of the guarantee and no action was brought to set aside the instrument. Ms Morrison is liable for IT Imaging's debt to Dynamic and the plaintiff is entitled to judgment and declarations as sought, subject to adjustments for credits conceded.

Parties
Plaintiff: Dynamic Supplies Pty Limited; First Defendant: Gina Lorna Morrison; Second Defendant: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
28 October 2005
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for the plaintiff with declarations and costs.
Legal Topics
Charging Clause, Guarantee, Equitable Interest in Land
Equity Charging Clause Guarantee Equitable Interest in Land

Case Brief

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Parties

Dynamic Supplies Pty Limited

Plaintiff

Gina Lorna Morrison

First Defendant

Westpac Banking Corporation

Second Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether a charging clause in a guarantee gives rise to an equitable charge over land
  2. 2 Whether the plaintiff is entitled to a declaration of equitable interest in land
  3. 3 Whether the amount claimed by the creditor is secured by an equitable charge

Ratio Decidendi

The Court held that the guarantee containing the charging clause executed by Ms Morrison gave rise to an equitable charge in favour of Dynamic over her land at 5 Fishburn Court, Terrigal, for her liabilities under the guarantee. Trade occurred on the faith of the guarantee and no action was brought to set aside the instrument. Ms Morrison is liable for IT Imaging's debt to Dynamic and the plaintiff is entitled to judgment and declarations as sought, subject to adjustments for credits conceded.

Court Disposition

Judgment for the plaintiff with declarations and costs.

Orders

  • Declare that the land comprised in folio identifier 851/804012 at 5 Fishburn Court, Terrigal is subject to an equitable charge from Gina Lorna Morrison to Dynamic Supplies Pty Limited in accordance with the guarantee and indemnity dated 22 November 2001.
  • Declare that the said land stands charged with the payment to Dynamic Supplies Pty Limited of $226,855.03.