Cini v First Mortgage Capital Pty Ltd [2023] NSWCA 53

Cini v First Mortgage Capital Pty Ltd [2023] NSWCA 53

The appeal was dismissed because the respondent, through the mortgage documents and Common Provisions, was an incumbrancer of the appellant's interest as tenant in common in the Maimuru property and therefore entitled to apply for an order under s 66G of the Conveyancing Act 1919 (NSW). The appellant established no inequitable basis to refuse the order, no evidentiary foundation for allegations of forgery or fraud, no jurisdictional defect, and no appealable error in the primary judge's reasoning. The appellant also failed to establish special grounds for receiving further evidence on appeal or any basis for the further motion concerning a vexatious order or abuse of process.

Jurisdiction
Australia
Judgment Date
27 March 2023
Procedural Posture
Land Law Appeal Concerning Orders Under S 66 G of the Conveyancing Act 1919 (nsw) for Vesting of Land in Trustees for Sale / Appeal From Orders of Darke J in the Equity Division of the Supreme Court; Appellant's Motions Dated 26 October 2022 and 28 February 2023 Also Determined
Outcome
The appellant's motions were dismissed and the appeal was dismissed with indemnity costs.
Legal Topics
['statutory Trust for Sale' 'section 66 G of the Conveyancing Act 1919 (nsw)' 'incumbrancer as Co Owner' 'further Evidence on Appeal' 'jurisdiction of the Supreme Court of New South Wales' 'indemnity Costs']
['land Law' 'co Ownership' 'mortgage and Guarantees' 'civil Procedure' 'appeals'] ['statutory Trust for Sale' 'section 66 G of the Conveyancing Act 1919 (nsw)' 'incumbrancer as Co Owner' 'further Evidence on Appeal' 'jurisdiction of the Supreme Court of New South Wales' 'indemnity Costs']

Case Brief

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Procedural Posture

Land Law Appeal Concerning Orders Under S 66 G of the Conveyancing Act 1919 (nsw) for Vesting of Land in Trustees for Sale / Appeal From Orders of Darke J in the Equity Division of the Supreme Court; Appellant's Motions Dated 26 October 2022 and 28 February 2023 Also Determined

Legal Issues

  1. 1 ['Whether the primary judge erred in ordering a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW).' "Whether the respondent was an incumbrancer of the appellant's interest in the Maimuru property and therefore a co-owner for the purposes of ss 66F and 66G of the Conveyancing Act 1919 (NSW)." 'Whether the appellant established any basis for receiving further evidence on appeal under s 75A(7)-(9) of the Supreme Court Act 1970 (NSW).' 'Whether allegations concerning lack of jurisdiction, customary law, forgery, fraud, the caveat, and the authenticity of mortgage documents disclosed appealable error.' "Whether the appellant's application for a vexatious order or abuse of process order had any basis." 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The appeal was dismissed because the respondent, through the mortgage documents and Common Provisions, was an incumbrancer of the appellant's interest as tenant in common in the Maimuru property and therefore entitled to apply for an order under s 66G of the Conveyancing Act 1919 (NSW). The appellant established no inequitable basis to refuse the order, no evidentiary foundation for allegations of forgery or fraud, no jurisdictional defect, and no appealable error in the primary judge's reasoning. The appellant also failed to establish special grounds for receiving further evidence on appeal or any basis for the further motion concerning a vexatious order or abuse of process.

Court Disposition

The appellant's motions were dismissed and the appeal was dismissed with indemnity costs.

Orders

  • ["The appellant's motions dated 26 October 2022 and 28 February 2023 are dismissed." 'The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal, including on the appellant's motions, on an indemnity basis."]