Goldstein v Shyzi Pty Ltd [2017] NSWSC 398

Goldstein v Shyzi Pty Ltd [2017] NSWSC 398

On the proper construction of the Deed and the mortgage, the occurrence of an Event of Default caused the mortgage terms to operate with full legal effect between the parties even though the mortgage was unregistered, and cl 2(c) separately charged the property in favour of Mr Goldstein. Because enforcement against Beelo and Essendon had been completed and the debt was not fully repaid, clause 4 permitted Mr Goldstein to enforce his security over Shyzi's property, but not yet to sue Shyzi personally for the outstanding balance.

Jurisdiction
Australia
Judgment Date
12 April 2017
Procedural Posture
Equity Proceedings Concerning Enforcement of Security Over Torrens Title Property / Principal Judgment After Hearing on Declaratory Relief and Costs; Issue of Judicial Sale Deferred
Outcome
Declarations to be made that the property is subject to an equitable mortgage in favour of Mr Goldstein and stands charged with repayment of the outstanding debt, interest and specified costs; personal debt recovery orders against Shyzi refused at this stage; judicial sale issue deferred.
Legal Topics
['unregistered Mortgage' 'equitable Mortgage' 'equitable Charge' 'caveatable Interest' 'power of Sale' 'construction of Deed of Settlement' 'priority Regime for Enforcement of Security']
['equity' 'property Law' 'mortgages'] ['unregistered Mortgage' 'equitable Mortgage' 'equitable Charge' 'caveatable Interest' 'power of Sale' 'construction of Deed of Settlement' 'priority Regime for Enforcement of Security']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Enforcement of Security Over Torrens Title Property / Principal Judgment After Hearing on Declaratory Relief and Costs; Issue of Judicial Sale Deferred

Legal Issues

  1. 1 ["Whether the plaintiff was entitled to enforce security over Shyzi Pty Ltd's property before registration of the mortgage." 'Whether the Deed of Settlement and executed mortgage gave the plaintiff rights as equitable mortgagee and chargee.' 'Whether clauses 6(a)-(c) of the Deed limited the plaintiff to enforcing only a registered mortgage.' "Whether clause 4 of the Deed permitted enforcement against Shyzi's property after enforcement against Beelo and Essendon properties, but before personal proceedings against Shyzi."]

Ratio Decidendi

On the proper construction of the Deed and the mortgage, the occurrence of an Event of Default caused the mortgage terms to operate with full legal effect between the parties even though the mortgage was unregistered, and cl 2(c) separately charged the property in favour of Mr Goldstein. Because enforcement against Beelo and Essendon had been completed and the debt was not fully repaid, clause 4 permitted Mr Goldstein to enforce his security over Shyzi's property, but not yet to sue Shyzi personally for the outstanding balance.

Court Disposition

Declarations to be made that the property is subject to an equitable mortgage in favour of Mr Goldstein and stands charged with repayment of the outstanding debt, interest and specified costs; personal debt recovery orders against Shyzi refused at this stage; judicial sale issue deferred.

Orders

  • ['Declarations to be made to the effect that the property is subject to an equitable mortgage in favour of Mr Goldstein on the terms of the mortgage executed on about 24 November 2015.' 'Declarations to be made to the effect that the property stands charged with repayment of the outstanding debt and interest and the...