Bofinger v Rekley Pty Ltd [2007] NSWSC 1138

Bofinger v Rekley Pty Ltd [2007] NSWSC 1138

There was no unconscionability in the second mortgagee retaining the surplus sale proceeds and securities; therefore, no equitable right of subrogation arose in favour of the plaintiffs. Even if it had, any such right was contractually waived by the terms of the security documents. Accordingly, the sums and securities in question were not held on trust for the plaintiffs.

Jurisdiction
Australia
Judgment Date
15 October 2007
Procedural Posture
Trial Separate Question / Judgment on Separate Question
Outcome
Court answered the separate question 'No'. Plaintiffs to pay costs of the argument.
Legal Topics
['guarantee and Indemnity' 'subrogation' 'mortgages' 'priority of Securities' 'trusts and Charges']
['equity'] ['guarantee and Indemnity' 'subrogation' 'mortgages' 'priority of Securities' 'trusts and Charges']

Case Brief

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Procedural Posture

Trial Separate Question / Judgment on Separate Question

Legal Issues

  1. 1 ['Whether sums of $268,307.33 and $432,712.53 and securities over Lots 1 and 14 SP75069 were held by the second defendant in trust for the plaintiffs as at 8 February 2006' 'Whether plaintiffs had a right of subrogation over the proceeds and securities' 'Whether any right of subrogation was waived by contract']

Ratio Decidendi

There was no unconscionability in the second mortgagee retaining the surplus sale proceeds and securities; therefore, no equitable right of subrogation arose in favour of the plaintiffs. Even if it had, any such right was contractually waived by the terms of the security documents. Accordingly, the sums and securities in question were not held on trust for the plaintiffs.

Court Disposition

Court answered the separate question 'No'. Plaintiffs to pay costs of the argument.

Orders

  • ['Answer to the separate question: No, the sums of $268,307.33 and $432,712.53 and securities over Lots 1 and 14 SP75069 were not held by the second defendant in trust for the plaintiffs as at 8 February 2006.' 'Plaintiffs to pay the costs of the argument of the separate question; costs of the third defendant...