Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 15:

1. The plaintiff claims priority to the proceeds of sale of two properties (the Kelly Street property and the Werrington County property). By notice of motion filed on 30 June 2025, it seeks summary judgment in the form of declarations as well as orders that the proceeds of the sales of the two properties (that have been paid into Court) be paid to its solicitor. It also seeks summary judgment against the first and sixth defendant.

2. There is no contest about the proceeds of sale of the Werrington County property or the applications against the first and sixth defendant. The position is different in relation to the proceeds of sale of the Kelly Street property. The relief claimed by the plaintiff in relation to those proceeds is contested by the 11th to 28th defendants.

The Kelly Street property dispute

3. The 11th to 28th defendants claim that their interest in the Kelly Street property sale proceeds should prevail over the plaintiff's claim. The proceeds paid into Court is an amount of $2,462,501.25, which was a surplus paid by the first registered mortgagee following the exercise of a power of sale.

4. The plaintiff's claim to the proceeds is based on a loan of $1,300,000 under a loan agreement dated 1 March 2024, supported by an unregistered mortgage over the Kelly Street property given by the first defendant. The loan was for a period of 6 months and was subject to interest at a (strikingly high) rate of $116,666.66 per month. With interest calculated at the "lower rate of interest" (i.e. not the default rate of $200,000 per month), the amount outstanding is over $3m, and so would account for the whole of the money paid into Court.

5. The 11th to 28th defendants were purchasers from the first defendant of lots in an unregistered plan of subdivision relating to the Kelly Street property, by contracts claimed to have been made at various dates in 2017. The subdivision has not taken place. The contracts were all rescinded in June 2024. The 11th to 28th defendants allege that they each acquired an equitable interest in the Kelly Street property in the form of a purchaser's lien, which arose when they paid instalments in respect of the purchase price, and reflected the amounts of those instalments as and when they were paid to the first defendant. They claim that their equitable interest, being earlier in time, prevails over the later equitable interest of the plaintiff. The total of the amount that is said to be payable to them, and supported by the purchasers' liens, exceeds $2,462,501.25. The 11th to 28th defendants contend that the whole of the amount paid into Court should go them, rather than to the plaintiff.

6. The general principles to be applied in an application for summary judgment are well-known and were not in dispute. UCPR r 13.1(1) provides as follows:

(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief-

(a) there is evidence of the facts on which the claim or part of the claim is based, and

(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

The 11th to 28th defendants relied on the recent summary of principles in AAN MP Pty Ltd as trustee for the AAN MP Unit Trust v Camilleri [2023] NSWSC 737 at [14]-[16].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980c4bdabebf4fc95b2e36d)

Disclaimer: Curated by HT Syndication.