Perpetual Trustee Company Ltd (original plaintiff). Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429

Perpetual Trustee Company Ltd (original plaintiff). Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429

The Certificate signed for Punch Street, read with the Loan Contract, Offer Letter and PCM Mortgage Form, identified the secured obligations and satisfied s 54A of the Conveyancing Act 1919, so PCM had an effective equitable charge. However, PCM's withdrawal of its caveat caused MFL to lend on the Property and entitled MFL to assume PCM no longer sought to protect, or no longer had, its interest. Because MFL had no notice of PCM's continuing interest when it acquired its own interest, PCM's withdrawal was postponing conduct and MFL's later equitable interest prevailed.

Jurisdiction
Australia
Judgment Date
13 May 2010
Procedural Posture
Priority Dispute Between Competing Unregistered Mortgagees Over Surplus Funds Paid Into Court After Sale by Registered First Mortgagee / Principal Judgment
Outcome
Motive Finance & Leasing Pty Ltd was held entitled to priority to the Surplus Funds, subject to evidence establishing that the amount due to it exceeded the money in court.
Legal Topics
['equitable Mortgage' 'unregistered Mortgages' 'priorities Between Equitable Interests' 'caveats' 'postponing Conduct' 'surplus Funds of Sale' 'sufficient Note or Memorandum in Writing']
['real Property' 'equity'] ['equitable Mortgage' 'unregistered Mortgages' 'priorities Between Equitable Interests' 'caveats' 'postponing Conduct' 'surplus Funds of Sale' 'sufficient Note or Memorandum in Writing']

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Procedural Posture

Priority Dispute Between Competing Unregistered Mortgagees Over Surplus Funds Paid Into Court After Sale by Registered First Mortgagee / Principal Judgment

Legal Issues

  1. 1 ['Whether any moneys owing to Performance Capital Mortgage Pty Ltd were secured on 2 Gow Street, Balmain NSW pursuant to an unregistered mortgage from Punch Street Pty Ltd dated 24 December 2007.' 'If Performance Capital Mortgage Pty Ltd had a secured equitable interest, whether its withdrawal of its caveat was postponing conduct displacing its priority as first in time.']

Ratio Decidendi

The Certificate signed for Punch Street, read with the Loan Contract, Offer Letter and PCM Mortgage Form, identified the secured obligations and satisfied s 54A of the Conveyancing Act 1919, so PCM had an effective equitable charge. However, PCM's withdrawal of its caveat caused MFL to lend on the Property and entitled MFL to assume PCM no longer sought to protect, or no longer had, its interest. Because MFL had no notice of PCM's continuing interest when it acquired its own interest, PCM's withdrawal was postponing conduct and MFL's later equitable interest prevailed.

Court Disposition

Motive Finance & Leasing Pty Ltd was held entitled to priority to the Surplus Funds, subject to evidence establishing that the amount due to it exceeded the money in court.

Orders

  • ['MFL is entitled to priority to the Surplus Funds.' 'Subject to evidence being given to establish that the amount due to MFL is greater than the amount of money in court, the Court will make an order for payment out.']