Manttan v Equititrust Limited [2010] NSWSC 534

Manttan v Equititrust Limited [2010] NSWSC 534

Orders 1 and 2 made on 23 April 2010 were interdependent and contemplated concurrent performance: Equititrust was to produce a withdrawal of caveat to enable completion, and the net proceeds of sale, calculated by taking account of the released deposit and after payment of reasonable costs of sale and the first mortgagee, were to be paid into court or, as conceded, the retained $16,000 balance could be paid to the first mortgagee.

Jurisdiction
Australia
Judgment Date
24 May 2010
Procedural Posture
Consequential Orders Concerning Construction of Interlocutory Orders / Hearing of Construction Issues Arising From Interlocutory Orders Made on 23 April 2010
Outcome
The Court determined that orders 1 and 2 were interdependent and that order 2 required the net proceeds of sale to take account of the deposit released to the plaintiff; the agent's commission issue was resolved by agreement.
Legal Topics
['construction of Interlocutory Orders' 'withdrawal of Caveat' 'payment of Net Proceeds of Sale Into Court' 'reasonable Costs of Sale']
['civil Procedure' 'real Property'] ['construction of Interlocutory Orders' 'withdrawal of Caveat' 'payment of Net Proceeds of Sale Into Court' 'reasonable Costs of Sale']

Case Brief

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Procedural Posture

Consequential Orders Concerning Construction of Interlocutory Orders / Hearing of Construction Issues Arising From Interlocutory Orders Made on 23 April 2010

Legal Issues

  1. 1 ['Whether orders 1 and 2 made on 23 April 2010 were interdependent.' 'Whether the net proceeds of the sale referred to in order 2 were to be calculated without reference to the $16,000 balance of the deposit released to the plaintiff.' 'Whether the amount of the commission to be paid to the selling agent, calculated at 12.69 per cent of the sale price, was a reasonable cost of sale within the meaning of order 2.']

Ratio Decidendi

Orders 1 and 2 made on 23 April 2010 were interdependent and contemplated concurrent performance: Equititrust was to produce a withdrawal of caveat to enable completion, and the net proceeds of sale, calculated by taking account of the released deposit and after payment of reasonable costs of sale and the first mortgagee, were to be paid into court or, as conceded, the retained $16,000 balance could be paid to the first mortgagee.

Court Disposition

The Court determined that orders 1 and 2 were interdependent and that order 2 required the net proceeds of sale to take account of the deposit released to the plaintiff; the agent's commission issue was resolved by agreement.

Orders

  • ['The obligations in orders 1 and 2 made on 23 April 2010 are interdependent and to be discharged concurrently.' 'The net proceeds of sale under order 2 must take account of the deposit released to the plaintiff.' 'If the $16,000 balance of the deposit retained by the plaintiff is not paid to the first mortgagee, it...