Ivory Lane Developments v Goorigubba [2015] NSWSC 224

Ivory Lane Developments v Goorigubba [2015] NSWSC 224

The deed granted Ivory Lane an equitable charge and mortgage over the property because recital J and other recitals were intended to operate as presently binding covenants, and cl 2 confirmed that Goorigubba agreed with and would perform obligations in the recitals. Goorigubba was indebted to Ivory Lane for $58,800 inclusive of GST, with interest, and Ivory Lane was entitled to declarations and an order for payment. Relief vesting the charge under s 58(3) of the Real Property Act 1900 (NSW) and recording by the Registrar General was not granted because the charge was not shown to be a charge as defined in s 3(1). Specific performance requiring execution of a registrable mortgage was not...

Jurisdiction
Australia
Judgment Date
12 March 2015
Procedural Posture
Common Law Proceeding Seeking Declaratory and Other Relief Concerning an Equitable Charge, Mortgage and Debt / Hearing of Plaintiff's Application; Ex Tempore Principal Judgment
Outcome
Plaintiff entitled to declarations as to the existence of an equitable charge and mortgage and debt, and to an order for payment of the debt with interest; plaintiff to bring in draft orders; matter stood over for directions.
Legal Topics
['construction of Deed' 'recitals With Present Binding Effect' 'equitable Charge and Mortgage' 'real Property Act Charge' 'interest on Unpaid Money' 'specific Performance' 'company in Liquidation']
['contract' 'equity' 'real Property' 'insolvency'] ['construction of Deed' 'recitals With Present Binding Effect' 'equitable Charge and Mortgage' 'real Property Act Charge' 'interest on Unpaid Money' 'specific Performance' 'company in Liquidation']

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Procedural Posture

Common Law Proceeding Seeking Declaratory and Other Relief Concerning an Equitable Charge, Mortgage and Debt / Hearing of Plaintiff's Application; Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the deed constituted an equitable charge and mortgage over 74 Courallie Avenue, West Homebush.' 'Whether recitals in the deed, particularly recital J, were intended to have present binding effect.' 'Whether Goorigubba was indebted to Ivory Lane in the amount claimed and whether interest was payable.' 'Whether the charge could be vested in Ivory Lane under s 58(3) of the Real Property Act 1900 (NSW) and recorded by the Registrar General.' 'Whether an order for specific performance requiring Goorigubba to execute a registrable mortgage should be made without hearing the liquidator.']

Ratio Decidendi

The deed granted Ivory Lane an equitable charge and mortgage over the property because recital J and other recitals were intended to operate as presently binding covenants, and cl 2 confirmed that Goorigubba agreed with and would perform obligations in the recitals. Goorigubba was indebted to Ivory Lane for $58,800 inclusive of GST, with interest, and Ivory Lane was entitled to declarations and an order for payment. Relief vesting the charge under s 58(3) of the Real Property Act 1900 (NSW) and recording by the Registrar General was not granted because the charge was not shown to be a charge as defined in s 3(1). Specific performance requiring execution of a registrable mortgage was not...

Court Disposition

Plaintiff entitled to declarations as to the existence of an equitable charge and mortgage and debt, and to an order for payment of the debt with interest; plaintiff to bring in draft orders; matter stood over for directions.

Orders

  • ['Plaintiff to bring in draft orders.' 'The matter is stood over for directions at 10am on Tuesday, 17 March 2015 before McDougall J.']