Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. Before the court is the plaintiff's notice of motion dated 22 July 2025.

2. On 29 November 2024 the court appointed the plaintiff as the receiver of the interest of Maria Fayad, the second defendant, in 59 Constitution Road and 61 Constitution Road, Constitution Hill, NSW (the properties): see Khattar v Hills Shoppingtown Pty Ltd (subject to a deed of company arrangement) [2024] NSWSC 1552. Each property is owned by Maria and her husband, Sam Fayad, who is bankrupt, as joint tenants. For convenience and without intending any disrespect I will refer to each of them by their first names.

3. Each property is subject to a registered mortgage in favour of I Properties Pty Ltd (I Properties), the first defendant. I Properties took a transfer of a registered mortgage over each property from Westpac Banking Corporation (Westpac) in December 2021. The transfer was made pursuant to a deed of assignment between Westpac as assignor and I Properties as assignee (deed of assignment) which is undated, but I infer was entered into on or shortly before 24 December 2024. That is the date each transfer of Westpac's mortgages to I Properties was registered.

4. Cl 2.1 of the deed of assignment provides that with effect from the date of the deed, Westpac, in consideration for the obligation of I Properties set out in the deed, 'assign absolutely to [I Properties] all of its right, title and interest in the Debt and the Mortgages, including the right to receive payment for all and any amounts due and owing by the Borrowers under the respective Facilities'. The term 'Borrowers' is defined to mean Maria and Sam and the 'Facilities' are the Westpac facilities identified in schedule 1 to the deed which were secured by the mortgages. Under cl 3.1, I Properties agreed to pay to Westpac the amount of the Debt (being 'the debt owing from time to time pursuant to the Facilities') as at the date of the deed.

5. The transfer of each mortgage states the consideration paid by I Properties to Westpac for each transfer to be: (a) for the mortgage of 59 Constitution Road, $1,267,000.76; and (b) for the mortgage of 61 Constitution Road, $662,954.33.

6. I infer from cl 3.1 of the deed of assignment that the amount paid by I Properties to Westpac was equal to the amount of the debt then owing by Maria and Sam to Westpac at the date of the assignment under the facilities secured by each mortgage.

7. It appears that the deed of assignment forms part of a wider transaction including a loan facility agreement entered into on 3 December 2021 between Maria and Sam as borrowers and I Properties as lender (loan facility agreement). This provides for a facility of up to $8 Million to be provided by I Properties to the borrowers at a fixed interest rate of 25% per annum. Schedule B to that loan facility agreement contains a statement by the borrowers 'confirming' the assignment of the Westpac mortgages to I Properties. Under cl 5.1 of the loan facility agreement, they agreed to repay all advances made under the agreement together with all obligations forming part of the 'obligations', which includes the amount paid by I Properties under the assignment of the Debt and the Mortgages under the deed of assignment.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19840439e1b21e37bfb26e1d)

Disclaimer: Curated by HT Syndication.