IMB Limited v Nallathambi & Anor [2009] NSWSC 1387

IMB Limited v Nallathambi & Anor [2009] NSWSC 1387

Booksan Pty Limited, holding a registered second mortgage that secures outstanding obligations exceeding the amount in court, has established a proprietary interest in the surplus proceeds. All potential claimants and caveators were notified, and none opposed or all consented to payment out. Therefore, Booksan is entitled to an order for payment out of the funds.

Parties
Plaintiff: IMB Limited; First Defendant: Pappathevar Nallathambi; Second Defendant: Parameswari Nallathambi; Applicant on the Motion: Booksan Pty Limited; First Respondent: Australian Securities and Investment Commission; Second Respondent: Perpetual Nominees Ltd; Third Respondent: Vertzayas Lawyers Pty Ltd formerly known as Hellas Income Tax Consulting Services Pty Ltd
Jurisdiction
Australia
Judgment Date
08 December 2009
Procedural Posture
Equity Application (mortgage Surplus Payment) / Ex Tempore Judgment on Interlocutory Motion for Payment Out of Court
Outcome
Order for payment out of court to applicant Booksan Pty Ltd
Legal Topics
Mortgages, Power of Sale, Surplus Proceeds, Trustee's Application to Pay Funds Out of Court
Property Law Equity Mortgages Power of Sale Surplus Proceeds Trustee's Application to Pay Funds Out of Court

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Parties

IMB Limited

Plaintiff

Pappathevar Nallathambi

First Defendant

Parameswari Nallathambi

Second Defendant

Booksan Pty Limited

Applicant on the Motion

Australian Securities and Investment Commission

First Respondent

Perpetual Nominees Ltd

Second Respondent

Vertzayas Lawyers Pty Ltd formerly known as Hellas Income Tax Consulting Services Pty Ltd

Third Respondent

Procedural Posture

Equity Application (mortgage Surplus Payment) / Ex Tempore Judgment on Interlocutory Motion for Payment Out of Court

Legal Issues

  1. 1 Whether Booksan Pty Limited has a proprietary interest in surplus funds paid into court after mortgage sale
  2. 2 Whether all potential claimants to the surplus funds have been notified or their claims resolved

Ratio Decidendi

Booksan Pty Limited, holding a registered second mortgage that secures outstanding obligations exceeding the amount in court, has established a proprietary interest in the surplus proceeds. All potential claimants and caveators were notified, and none opposed or all consented to payment out. Therefore, Booksan is entitled to an order for payment out of the funds.

Court Disposition

Order for payment out of court to applicant Booksan Pty Ltd

Orders

  • Funds paid into court in these proceedings on or about 1 June 2009 and 3 July 2009, totalling $137,261.27 together with any interest accrued thereon, be paid out of court to applicant Booksan Pty Ltd.