Re Westpac Banking Corporation (No 2) [2015] NSWSC 1587

Re Westpac Banking Corporation (No 2) [2015] NSWSC 1587

On the proper construction of cl 22.1 of the Investor Agreement, David Wai's equitable charge over the Property did not arise merely when he became entitled to lodge a caveat after 31 December 2010. Because the agreement gave him a choice whether to lodge a caveat and contained contingencies as to timing, and because any doubt in the guarantee context should be resolved in favour of the Guarantors, the Property was bound by an equitable charge only when Dr Wai exercised his right by lodging the caveat on 11 October 2011. Somy Ros and Brian Kelly's equitable mortgage was created on 22 June 2011. As the competing equitable interests were otherwise equal, the first in time prevailed, so Ros...

Jurisdiction
Australia
Judgment Date
30 October 2015
Procedural Posture
Equity Proceeding Concerning Funds Paid Into Court by Plaintiff Mortgagee After Mortgagee Sale of Property / Principal Judgment on Competing Notices of Motion for Payment Out of Court
Outcome
Somy Ros and Brian Kelly's notice of motion was granted; David Wai's notice of motion was dismissed; David Wai was ordered to pay Ros and Kelly's costs of both notices of motion.
Legal Topics
['priority of Competing Equitable Interests' 'equitable Mortgage' 'equitable Charge' 'caveat' 'funds Paid Into Court' 'mortgagee Sale Surplus Proceeds']
['equity' 'real Property' 'mortgages and Securities'] ['priority of Competing Equitable Interests' 'equitable Mortgage' 'equitable Charge' 'caveat' 'funds Paid Into Court' 'mortgagee Sale Surplus Proceeds']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Funds Paid Into Court by Plaintiff Mortgagee After Mortgagee Sale of Property / Principal Judgment on Competing Notices of Motion for Payment Out of Court

Legal Issues

  1. 1 ['Whether Somy Ros and Brian Kelly or David Wai had priority to the surplus proceeds paid into Court by Westpac Banking Corporation.' "Whether David Wai's equitable charge was created when he first became entitled to lodge a caveat after 31 December 2010 or when his caveat was lodged on 11 October 2011." 'Whether, as between two competing equitable interests with equal equities, the first in time prevails.']

Ratio Decidendi

On the proper construction of cl 22.1 of the Investor Agreement, David Wai's equitable charge over the Property did not arise merely when he became entitled to lodge a caveat after 31 December 2010. Because the agreement gave him a choice whether to lodge a caveat and contained contingencies as to timing, and because any doubt in the guarantee context should be resolved in favour of the Guarantors, the Property was bound by an equitable charge only when Dr Wai exercised his right by lodging the caveat on 11 October 2011. Somy Ros and Brian Kelly's equitable mortgage was created on 22 June 2011. As the competing equitable interests were otherwise equal, the first in time prevailed, so Ros...

Court Disposition

Somy Ros and Brian Kelly's notice of motion was granted; David Wai's notice of motion was dismissed; David Wai was ordered to pay Ros and Kelly's costs of both notices of motion.

Orders

  • ['Order in terms of order 1 of the notice of motion filed by Somy Ros and Brian Kelly on 14 May 2015.' 'Order that David Wai pay to Somy Ros and Brian Kelly the costs of the notice of motion filed on 14 May 2015.' 'Order that the notice of motion filed by David Wai on 19 May 2015 be dismissed.' 'Order that David Wai...