Westpac Banking Corporation [2015] NSWSC 869

Westpac Banking Corporation [2015] NSWSC 869

On the proper construction of the ambiguous Investor Agreement, having regard to the surrounding circumstances, clause 7.1(c) and clause 22, Ms Thei and Mr Firman were bound by the deed, guaranteed repayment of the Wholesum debt, and granted Dr Wai a right to lodge a caveat over the Property. Clause 22 authorised Dr Wai to create a charge over the Property by lodging a caveat, and Dr Wai therefore had a charge over the Property and the money in Court. However, because the validity and priority of the competing claimed charge of Ms Ros and Mr Kelly had not been determined, it was premature to make final orders on Dr Wai's motion.

Jurisdiction
Australia
Judgment Date
03 July 2015
Procedural Posture
Applications for Payment Out of Court of Surplus Mortgagee Sale Proceeds Paid Into Court Under S 98 of the Trustee Act 1925 (nsw) / Hearing of Dr David Wai's Notice of Motion; Somy Ros and Brian Kelly's Notice of Motion Adjourned; No Final Orders Made
Outcome
No orders made; the hearing of both notices of motion was to be relisted for determination of the remaining issues.
Legal Topics
['payment Out of Court' 'surplus Proceeds of Mortgagee Sale' 'equitable Charge' 'caveat' 'construction of Deed' 'guarantee' 'priority Between Competing Equitable Interests']
['civil Procedure' 'equity' 'property Law' 'mortgages and Securities'] ['payment Out of Court' 'surplus Proceeds of Mortgagee Sale' 'equitable Charge' 'caveat' 'construction of Deed' 'guarantee' 'priority Between Competing Equitable Interests']

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Procedural Posture

Applications for Payment Out of Court of Surplus Mortgagee Sale Proceeds Paid Into Court Under S 98 of the Trustee Act 1925 (nsw) / Hearing of Dr David Wai's Notice of Motion; Somy Ros and Brian Kelly's Notice of Motion Adjourned; No Final Orders Made

Legal Issues

  1. 1 ['Whether Ms Thei and Mr Firman, although not named as parties and signing as director/secretary for Wholesum Investments Pty Ltd, were parties to and bound by the Investor Agreement.' 'Whether clause 22 of the Investor Agreement conferred on Dr Wai a right to lodge a caveat over the Property.' 'Whether the Investor Agreement created or authorised creation of an equitable charge over the Property in favour of Dr Wai.' 'When any equitable charge in favour of Dr Wai was created and how its priority should be determined against the competing claimed charge of Ms Ros and Mr Kelly.']

Ratio Decidendi

On the proper construction of the ambiguous Investor Agreement, having regard to the surrounding circumstances, clause 7.1(c) and clause 22, Ms Thei and Mr Firman were bound by the deed, guaranteed repayment of the Wholesum debt, and granted Dr Wai a right to lodge a caveat over the Property. Clause 22 authorised Dr Wai to create a charge over the Property by lodging a caveat, and Dr Wai therefore had a charge over the Property and the money in Court. However, because the validity and priority of the competing claimed charge of Ms Ros and Mr Kelly had not been determined, it was premature to make final orders on Dr Wai's motion.

Court Disposition

No orders made; the hearing of both notices of motion was to be relisted for determination of the remaining issues.

Orders

  • []