RHG Mortgage Securities v BNY Trust Company [2009] NSWSC 1432

RHG Mortgage Securities v BNY Trust Company [2009] NSWSC 1432

The phrase "in arrears for greater than 90 days" in the Series Supplement should be given its ordinary meaning, not the plaintiffs' reporting methodology. Amortisation Events and Events of Default occurred when arrears thresholds were exceeded and corresponding payments were not made. Relief against forfeiture is not available unless and until sale of the charged assets, as mere acceleration and appointment of a receiver do not amount to forfeiture of a proprietary right. The plaintiffs' claims for relief fail, and the events of default and relevant contractual consequences stand.

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Principal Judgment / Judgment After Trial
Outcome
Plaintiffs' claims dismissed; partial declarations granted on cross-claim.
Legal Topics
['relief Against Forfeiture' 'acceleration of Obligations' 'appointment of Receiver' 'default in Securitisation' 'construction of Contractual Terms']
['equity' 'contracts' 'commercial Law'] ['relief Against Forfeiture' 'acceleration of Obligations' 'appointment of Receiver' 'default in Securitisation' 'construction of Contractual Terms']

Case Brief

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Procedural Posture

Principal Judgment / Judgment After Trial

Legal Issues

  1. 1 ['Proper construction of "Amortisation Event" in the Series Supplement' 'Whether an Amortisation Event occurred' 'Whether an Event of Default occurred' 'Whether BNY was actually aware of an Event of Default' 'Whether RMS is entitled to relief against forfeiture']

Ratio Decidendi

The phrase "in arrears for greater than 90 days" in the Series Supplement should be given its ordinary meaning, not the plaintiffs' reporting methodology. Amortisation Events and Events of Default occurred when arrears thresholds were exceeded and corresponding payments were not made. Relief against forfeiture is not available unless and until sale of the charged assets, as mere acceleration and appointment of a receiver do not amount to forfeiture of a proprietary right. The plaintiffs' claims for relief fail, and the events of default and relevant contractual consequences stand.

Court Disposition

Plaintiffs' claims dismissed; partial declarations granted on cross-claim.

Orders

  • ['The proceedings are dismissed.' 'The injunction granted on 15 September 2009 is dissolved, with stay to 5:00pm on 23 December 2009.' 'Liberty to apply regarding stay and costs.' 'Declaration that an Amortisation Event subsisted on the Payment Date in October, December 2008, and January 2009.' 'Declaration that an...