Southern Cross Constructions (NSW) Pty Limited v Salfa Pty Limited (In Liquidation) (Receivers and Managers Appointed) [2009] NSWSC 634

Southern Cross Constructions (NSW) Pty Limited v Salfa Pty Limited (In Liquidation) (Receivers and Managers Appointed) [2009] NSWSC 634

Section 7D of the Home Building Act 1989 (NSW) did not apply because the Deed was not a contract under which the plaintiff agreed to do any work; when the Deed was entered into, the debt it secured had already arisen and the relevant work had been completed. The Deed therefore supported the declarations that the plaintiff held valid and enforceable equitable mortgage interests in the two properties and that the claimed indebtedness was due.

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Amended Summons Seeking Declarations as to Equitable Mortgages and Indebtedness / Ex Tempore Judgment
Outcome
Plaintiff granted the relief sought; declaration that the plaintiff has equitable mortgage interests.
Legal Topics
['equitable Mortgage' 'security Over Land' 'home Building Act 1989 (nsw) S 7 D' 'leave to Proceed Against Company in Liquidation']
['real Property' 'equity' 'home Building Legislation' 'corporations'] ['equitable Mortgage' 'security Over Land' 'home Building Act 1989 (nsw) S 7 D' 'leave to Proceed Against Company in Liquidation']

Case Brief

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Procedural Posture

Amended Summons Seeking Declarations as to Equitable Mortgages and Indebtedness / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Deed conferred on the plaintiff a valid and enforceable equitable mortgage in respect of the real property described in folio identifier 14/SP76969.' 'Whether the Deed conferred on the plaintiff a valid and enforceable equitable mortgage in respect of the real property described in folio identifier 21/SP76969.' "Whether s 7D of the Home Building Act 1989 (NSW) prevented or voided the creation of the plaintiff's claimed legal or equitable interest in the land." 'Whether the first defendant was indebted to the plaintiff in the amount claimed as at 11 June 2009 plus interest.']

Ratio Decidendi

Section 7D of the Home Building Act 1989 (NSW) did not apply because the Deed was not a contract under which the plaintiff agreed to do any work; when the Deed was entered into, the debt it secured had already arisen and the relevant work had been completed. The Deed therefore supported the declarations that the plaintiff held valid and enforceable equitable mortgage interests in the two properties and that the claimed indebtedness was due.

Court Disposition

Plaintiff granted the relief sought; declaration that the plaintiff has equitable mortgage interests.

Orders

  • ['Declaration that the plaintiff holds a valid and enforceable equitable mortgage in respect of the real property described in folio identifier 14/SP76969.' 'Declaration that the plaintiff holds a valid and enforceable equitable mortgage in respect of the real property described in folio identifier 21/SP76969.'...