Johncorp Industries v Sussman [2001] NSWSC 519

Johncorp Industries v Sussman [2001] NSWSC 519

The mortgage secured the prior $1,850,000 loan only through the mortgagors' guarantee obligation. Clause 10 of the Second Deed did not extend the mortgage to money previously lent under the First Deed, and clause 21 did not secure the prior loan merely as a loan to 'the Mortgagor'. However, the Deed of Guarantee extended to the prior debt as 'Guaranteed Moneys', and clause 21 of the mortgage secured all moneys owing by the Mortgagor in respect of a guarantee given to the mortgagee. The mortgage therefore secured Mr and Mrs Sussman's guarantee obligation in respect of the $1,850,000 loan.

Jurisdiction
Australia
Judgment Date
20 June 2001
Procedural Posture
Equity Proceedings Concerning Construction of a Mortgage and Whether It Secured a Prior Loan or Guarantee Obligation / Final Hearing on Return of Summons After an Urgent Ex Parte Caveat Related Application
Outcome
Plaintiff entitled to declaratory relief and costs.
Legal Topics
['construction of All Monies Clause' 'caveats' 'guarantees' 'collateral Security' 'joint and Several Liability']
['mortgages' 'real Property' 'equity'] ['construction of All Monies Clause' 'caveats' 'guarantees' 'collateral Security' 'joint and Several Liability']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Concerning Construction of a Mortgage and Whether It Secured a Prior Loan or Guarantee Obligation / Final Hearing on Return of Summons After an Urgent Ex Parte Caveat Related Application

Legal Issues

  1. 1 ["Whether the mortgage dated 13 August 2000 secured the first defendant's obligation to repay the loan of $1,850,000 plus interest made under the Deed of Loan dated 15 May 1998." 'Whether clause 10 of the Second Deed caused the mortgage to secure money previously lent under the First Deed.' 'Whether the Deed of Guarantee dated 13 August 2000 extended to the prior $1,850,000 debt as Guaranteed Moneys.' "Whether clause 21 of the registered memorandum incorporated into the mortgage extended the mortgage to the mortgagors' guarantee obligation in respect of the prior loan."]

Ratio Decidendi

The mortgage secured the prior $1,850,000 loan only through the mortgagors' guarantee obligation. Clause 10 of the Second Deed did not extend the mortgage to money previously lent under the First Deed, and clause 21 did not secure the prior loan merely as a loan to 'the Mortgagor'. However, the Deed of Guarantee extended to the prior debt as 'Guaranteed Moneys', and clause 21 of the mortgage secured all moneys owing by the Mortgagor in respect of a guarantee given to the mortgagee. The mortgage therefore secured Mr and Mrs Sussman's guarantee obligation in respect of the $1,850,000 loan.

Court Disposition

Plaintiff entitled to declaratory relief and costs.

Orders

  • ["Declaration that the mortgage extends to the defendants' obligation under the Deed of Guarantee with respect to the previous loan." 'Plaintiff entitled to costs.']