Business Finance Pty Ltd (receiver and manager appointed) v Partner Invest Pty Ltd (in liquidation) [2022] NSWSC 1

Business Finance Pty Ltd (receiver and manager appointed) v Partner Invest Pty Ltd (in liquidation) [2022] NSWSC 1

There was an equitable assignment of the JML loan and associated security from Partner Invest to Business Finance, manifested by intention and supporting business records and conduct, even though formal written documentation satisfying the Statute of Frauds was not executed. The payment of $830,000 by Business Finance constituted sufficient part performance, and permitting Partner Invest to rely on the Statute of Frauds would operate as a fraud in the circumstances. Consequently, Business Finance was entitled to the declared equitable interest and relief sought.

Jurisdiction
Australia
Judgment Date
07 January 2022
Procedural Posture
Equity Proceedings / Judgment After Hearing
Outcome
Equitable assignment declared; consequential relief granted.
Legal Topics
['equitable Assignment' 'statute of Frauds' 'part Performance' 'assignment of Loan and Mortgage Security']
['equity'] ['equitable Assignment' 'statute of Frauds' 'part Performance' 'assignment of Loan and Mortgage Security']

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Procedural Posture

Equity Proceedings / Judgment After Hearing

Legal Issues

  1. 1 ['Whether an equitable assignment of a mortgage and associated securities occurred from Partner Invest to Business Finance' 'Whether the requirements of the Statute of Frauds preclude enforcement of the assignment' 'Whether the payment constituted part performance' 'Whether allowing reliance on the Statute of Frauds would amount to a fraud']

Ratio Decidendi

There was an equitable assignment of the JML loan and associated security from Partner Invest to Business Finance, manifested by intention and supporting business records and conduct, even though formal written documentation satisfying the Statute of Frauds was not executed. The payment of $830,000 by Business Finance constituted sufficient part performance, and permitting Partner Invest to rely on the Statute of Frauds would operate as a fraud in the circumstances. Consequently, Business Finance was entitled to the declared equitable interest and relief sought.

Court Disposition

Equitable assignment declared; consequential relief granted.

Orders

  • ['Declare that, on 2 January 2018, Partner Invest assigned to Business Finance all its rights as lender under the JML Loan, lender under the guarantees, mortgagee under registered mortgage AQ659453Y (Bendigo Property), and secured party under PPSR Security.' 'Declare that Business Finance holds an equitable mortgage...