Sanwick v Wily as Trustee of the Bankrupt Estate of Peter Robert Finn & Anor [2009] NSWSC 86 (27 February 2009)

Last Updated: 4 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Sanwick v Wily as Trustee of the Bankrupt Estate of Peter Robert Finn & Anor [2009] NSWSC 86


JURISDICTION:
Equity

FILE NUMBER(S):
1506/08

HEARING DATE(S):
5 February 2009

JUDGMENT DATE:
27 February 2009

PARTIES:
Sanwick Pty Limited (Plaintiff)
Andrew Hugh Jenner Wily as trustee of the Bankrupt Estate of Peter Robert Finn (First Defendant)
Helen Janet Finn (Second Defendant)

JUDGMENT OF:
Bryson AJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Ventry Gray (Plaintiff)
Francois Salama (Defendant)

SOLICITORS:
Corporate & Civil Legal Solicitors (Plaintiff)
Inner West Legal Solicitors (Defendants)


CATCHWORDS:
MORTGAGE – construction of mortgage – irregular drafting – held that the mortgage according to its terms did not secure any money to the mortgagee. BANKRUPTCY – avoidance of preferences – consideration of operation of s 120, s 122 and s 123 on irregularly drafted mortgage, granted shortly before bankruptcy to secure debt owed by person other than the mortgagor – HELD – the mortgage was a transfer of property. It was not void under s 122 because the mortgagee was not a creditor of the mortgagor. It was void under s 120

LEGISLATION CITED:
Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
At paragraph [35]
Orders:
(1) On the plaintiff’s claim give judgment for the defendants with costs.
(2) On the Second Cross-claim declare that no money and no obligation to pay any money is secured to the cross-defendant Sanwick Pty Ltd by Mortgage AD 432 195T over the land in Certificate of Title Folio Identifiers 1/711399 and 11/SP53906.
(3) Order that the mortgage be delivered up and cancelled under the further directions of the Court.
(4) Declare that Peter Robert Finn, a bankrupt and his bankrupt estate are not liable to the cross-defendant, Sanwick Pty Ltd under the mortgage in any respect.
(5) Declare that the mortgage is void against the cross-claimant under s 120(1) of the Bankruptcy Act 1966 (Cth).
(6) Order that the cross-defendant pay the cross-claimant’s costs of the Second Cross-claim.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


BRYSON AJ

Friday 27 February 2009

1506/08 SANWICK PTY LIMITED v ANDREW HUGH JENNER WILY AS TRUSTEE OF THE BANKRUPT ESTATE OF PETER ROBERT FINN & ANOR

JUDGMENT

1 HIS HONOUR: These proceedings relate to the enforcement of mortgage AD432195T which Mr Peter Finn gave to the plaintiff Sanwick Pty Limited ("Sanwick"). The mortgage bears date 15 September 2007 and was registered on 26 September 2009. Mr Finn mortgaged his interests in two properties, a house at Dulwich Hill of which he owned a three quarter share as tenant in common with his wife, Mrs Helen Finn (who is the second defendant) who owned a quarter share, and a strata unit at Greenacre, which each of them owned as tenants in common in equal shares. The mortgage only extended to Mr Finn's interests.

2 Sanwick, by its summons dated 15 February 2008 claimed orders under s 66G of the Conveyancing Act 1919 (NSW), appointing trustees for the sale of the whole of the properties including Mrs Finn's interests.

3 Mr. Finn brought a First Cross Claim on 28 April 2008. However Mr. Finn became bankrupt by a sequestration order of the Federal Magistrates Court on 31 March 2008: this had the effect of staying these proceedings under s 58 of the Bankruptcy Act 1966 (Cth). The Registrar made an order on 24 July 2008 which had the effect of substituting Mr Wily, the trustee of Mr Finn's bankrupt estate, as first defendant in substitution for Mr Finn: and the litigation proceeded. No steps have been taken under the First Cross Claim. On 11 September 2008 Mr Wily brought a Second Cross-claim against Sanwick seeking declarations which would establish that the mortgage did not have effect and that there was no obligation of Mr Finn to pay money to Sanwick.

4 The Second Cross-claim alleged a number of circumstances which were said to show that the mortgage was not enforceable, and went on to make a claim under s 122 of the Bankruptcy Act for avoidance of the mortgages as preference under that section. For reasons which I will state, I do not think that as s 122 is the provision relating to avoidance which requires attention: it is s 120 which requires attention. Notwithstanding the lack of express reference to s 120 in the Statement of Cross-claim, the Cross-claim alleges facts which if correct show that s 120 operates to avoid the mortgage, and this should have been discernible to anyone who read the Cross-claim with advertence to its being made by a trustee in bankruptcy who is claiming avoidance under the Bankruptcy Act.

5 Sanwick’s counsel contended to the effect that the Cross-claimant is for some reason disentitled or unable to rely on avoidance of the mortgage under s 120: but in my opinion as the allegations, and also the facts, including indeed facts proved by Sanwick, appear to show that s 120 applies, I am obliged to adjudicate on whether it does.

6 The relevant facts appear to be simple at their core, but they are immersed in complexities, much of which I must state.

7 In 2007 Mr Finn was the sole director and secretary of Finns Bins Investments Pty Ltd. Mr Finn and his wife purchased the house in Dulwich Hill in 1995 and a home unit at Greenacre in 2005. By April 2007 Mr Finn owed a lot of money to Charter Finance Pty Limited and could not pay. Charter sued him by a Statement of Claim filed on 13 April 2007, which he could not defend. Charter obtained judgment for $1,430,656.98 on 20 September 2007: more money than Mr Finn's assets were worth. It is plain that by and well before September 2007 Mr Finn was insolvent. This is supported by his own evidence and by the evidence of Ms Fleur Evans an Insolvency Manager employed by the Bankruptcy Trustee, and was not disputed. Charter issued a bankruptcy notice on 17 October 2007 and served it soon afterwards, and Mr Finn did not comply. Charter filed a creditors' petition from 20 December 2007 and a sequestration order was made on 8 April 2008. (So says Mr Finn: another source says 31 March 2008). The mortgage dated 15 September 2007 falls within the avoidance or relation back period provided for by s 122(1)(b) and the five year period in s 120(1).

8 In September 2007 Sanwick held a mortgage over a tract of land, regarded as a development prospect, in Oakey Forest Road, Marrangaroo near Lithgow, NSW. The principal figures in Lithgow Project Development Pty Ltd were Mr Mikosic and Mr Witham. The company owned the land and was in default on the mortgage, and owed over $5,700,000.00. Sanwick had taken possession as mortgagee and had arranged for the property to be sold by public auction on Tuesday 18 September 2007.

9 Mr Finn owned no interest in the Oakey Forest Road property or in Lithgow Project Development. Mr Finn knew something of the development prospect and Lithgow Project Development because Mr Hraiki, a client in Mr Finn's accountancy practice, had agreed to buy the shares in Lithgow Project Development from Mr Mikosic and Mr Witham but had been unable to raise finance and complete the purchase. Mr Hraiki's company Lendwise Finance Pty Limited went in to liquidation, at some time about June 2007. Mr Hooper and Mr Bailey, said by Mr Finn to be financial consultants to Mr Hraiki and to be involved in helping Mr Hraiki raise finance, gave Mr Finn information about the proposed development and Mr Finn decided that he would be interested in taking it over, after seeing a valuation.

10 In early August 2007 Mr Finn told Mr Bailey that Mr Finn would be interested in the Oakey Forest Road Development and Mr Bailey acted as intermediary between Mr Mikosic and Mr Witham who controlled Lithgow Project Development, and Mr Finn. Mr Finn with the assistance of Mr Hooper made some enquiries about financing the development project. Then about August and September 2007 Mr Finn came to know that Sanwick was placing considerable pressure on Mr Witham and Mr Mikosic including stating its intention to sell the development property by auction. In August 2007 Mr Finn retained Messrs Gray and Perkins Solicitors to act for him and correspond with solicitors acting for Lithgow Project Development, who were or came to be Messrs Senat and Associates Solicitors of Punchbowl, the principal being Mr Vincent Senat. At some stage also Messrs Gray and Perkins corresponded with Corporate and Civil Legal, the firm of the solicitors who acted for Sanwick; the principal was Mr Damcevski.

11 These communications led to the preparation of a Share Sale Agreement. One form of the Share Sale Agreement is Exhibit 1 which bears date Friday 15 September 2007. There are other forms or parts of the Share Sale Agreement in evidence, and there were suggestions that its terms were varied, possibly in ways which do not appear in Exhibit 1. Exhibit 1 is not signed on behalf of the vendors, only by Mr Finn: Mr Finn annexed to his affidavit a form of Share Sale Agreement, a copy which did not bear many alterations which appear in Exhibit 1: he says that this unaltered document is a copy of what he executed. Mr Finn was not cross-examined to challenge what he says about this: he is the only person who signed the document who gave reliable evidence. The case that what he signed was a version which did not have hand written alterations is a strong one. Mr Witham gave evidence that a number of alterations were made and initialled on behalf of the parties at a meeting on Saturday 16 September 2007 at which Mr Finn was not present. Mr Witham repeatedly said in evidence, in various forms, that Mr Bailey was present on behalf of Mr Finn and had Mr Finn's authority to sign alterations on behalf of Mr Finn: but although brought to this subject several times he was unable to state a clear basis on which he was giving evidence of this asserted authority.

12 On Monday 18 September in the course of some communications with Mr Damcevski, Mr Senat sent Mr Damcevski copies of several pages of the document bearing alterations. Mr Finn was not cross-examined to suggest that he agreed to all the alterations or that he gave any authority to Mr Bailey. However it is plain enough that at least in limited respects he approved of arrangements which do not accord exactly with what is in the document annexed to his affidavit.

13 I am at a loss to make a clear finding on what terms in writing Mr Finn agreed to. I will address what the rights of the parties are or would be if he was in fact bound by all the written variations which were shown to Mr Damcevski, although there is a strong basis for finding that he did not approve of or sign or initial them: while on the other hand the document which he did sign was not strictly applied, and it seems that Mr Finn approved of some of the departures.

14 The Agreement for the Sale of Shares contained the following provisions about the deposit and balance purchase price, which I set out from Mr Finn's version annexed to his affidavit:

2A DEPOSIT

2A.1 The Purchaser shall pay the Deposit as follows:-

(a) on or before the date upon which this Agreement is entered into the sum of One Hundred Thousand Dollars ($100,000.00) to the Vendor’s solicitors to be held as stakeholder; and

(b) the sum of Three Hundred Thousand Dollars ($300,000.00) being the balance of the Deposit shall be lent by the Vendor to the Purchaser and shall be secured by an unregistered mortgage from Peter Robert Finn (as Mortgagor) to the Vendor (as Mortgagee) over the properties known as 125 Wardell Road, Dulwich Hill and 11/11-17 Davidson Street, Greenacre being the whole of the land in Certificates of Title Folio Identifiers 1/711399 and 11/SP53906 The Mortgage in registrable form shall be prepared by the Purchaser’s solicitors at the expense of the Purchaser and approved by the Vendor’s Solicitors.

2A.2 On Completion the Deposit shall vest in the Vendor and the stakeholder shall account to the Vendor for the sum of One Hundred Thousand Dollars ($100,000.00) on receipt of an authority from the Purchaser or the Purchaser’s solicitor.

3. BALANCE PURCHASE PRICE

3.1 Time and Manner of Payment

The Balance of the Purchase Price together with all other amounts payable by the Purchaser to the Vendor at the time of Completion shall be paid as follows:

(a) On the Completion Date the sum of $6, 400,000.00 (which includes the Vendor’s expenses of $40,000.00) and the sum of $300,000.00 being the balance of the Deposit by bank cheque to the Vendor or to whom the Vendor directs in writing; and

(b) The sum of $2,750,000.00 (“the Principal Sum”) shall be lent to the Purchaser by the Vendor and such loan shall be secured by a second mortgage from the Purchaser (as Mortgagor) to the Vendor (as Mortgagee) over the Freehold Properties. This mortgage shall be prepared by the Vendor’s solicitors at the expense of the Purchaser and shall contain the following terms:

(i) The loan shall be repaid within 24 months from the Completion Date;

(ii) Interest shall be payable by the Purchaser to the Vendor at the rate of 10% per annum and the first payment of interest is six (6) months after settlement and then quarterly.

(iii) The Purchaser has the right at any time during the term of the loan to reduce the Principal Sum by paying to the Vendor amounts of not less than $50,000.00 whereupon interest on the balance of the Principal Sum shall then be calculated from the last day of the calendar month in which such payment is or payments are made.

15 Completion was dealt with in clause 4 and included the following provisions:

4.2 Obligations of Vendor at Completion

On Completion:

(a) the Vendor shall deliver to the Purchaser:

(i) duly executed transfers of their Sale Shares free of Encumbrances to the Purchaser in a form approved by the Purchaser as being registrable, subject to payment of stamp duty in respect of such transfers by the Purchaser;

(ii) duly executed discharge of the mortgage referred to in clause 3.1 (b)

(b) the Vendor shall ensure that the following title documentation and other documents are present at the Premises:

(i) the Records (pertaining only to the Company), including the certificate of incorporation of the Company, and common seal or other official seals of the Company, the register of Shareholders, charges and directors and secretaries, the minute book of directors’ and Shareholders’ meetings; and

(ii) all certificates of title, title deeds and other documents of title, lease documents and guarantees (free of Encumbrances) and the share certificates for all of the Sale Shares or relevant statutory declarations as to their loss if such certificates cannot be found;

16 There were Share Warranties. Clause 5.1 provides:

5.1. Share Warranties

In consideration of the agreement for sale and purchase herein the Vendor hereby warrants to the Purchaser that the Share Warranties are or will be true on Completion.

17 Share Warranties are in Schedules. Sch 3 cl 4 includes in this warranty:

(b) Security Interests. No Security Interest or other third party interests or rights exist over any assets of the Company (excluding Leased Assets) other than the Security Interests listed in Schedule 8.

18 The references to the deposit are strange. In the altered version shown to Mr Damcevski the word “vendors” in the second line of clause 2A.1(a) was ruled out and the word “mortgagees” substituted. However this did not change the provision that the solicitor was to be stakeholder of $100,000.00. Another alteration, at clause 2 said "This agreement is subject to the consent of the current mortgagee for the freehold properties" showing that Sanwick was the mortgagee referred to. Sanwick of course was not a party to the Share Sale Agreement, nor was Sanwick's solicitor. Nor indeed was Mr Finn. In the ordinary meaning of language only $100,000.00 was the deposit but the parties used the word "deposit" in a different sense to include the $300,000.00. However clause 3.1(a) makes it altogether clear that the $300,000.00 called a deposit was to be paid by bank cheque on completion: it was not to be paid any earlier, or in any other way.

19 Unless there was completion there is no provision of the Share Sale Agreement requiring that the $300,000.00 be paid at all. Unless completion took place, clause 2A.2 could never take effect to vest the deposit which the parties referred to (being the whole $400,000.00) in the vendor, and according to what the document says all the $400,000.00 would still belong to the purchaser. Obviously it was not really intended by the parties that Mr Mikosic and Mr Witham would lend Finns Bins Investments $300,000.00 in money. It appears plain that the parties acted on a convention (which they knew was not the actual state of affairs) to the effect that a notional loan could support a security document for payment of the $300,000.00. This convention would not alter what the Share Sale Agreement expressly provides in cl 3.1(a) about when the $300,000.00 was to be paid and would not make it payable if completion did not ever happen.

20 Mr Finn was not a party to the agreement and did not make a contractual promise to provide the mortgage referred to. The $300,000.00 was not lent to him, either actually or according to the convention, which provided for the notional loan to be to Finns Bins Investments.

21 Mr Finn did execute a mortgage but it did not accord with clause 2A.1(b), which provided for a mortgage to the vendors Mr Mikovic and Mr Witham as mortgagees. So Finns Bins Investments never complied with clause 2A.1(b). The mortgage was in favour of Sanwick and that is the document that Sanwick bases its case on. There is no reference to a mortgage to Sanwick in the Share Sale Agreement, with or without any alteration.

22 It could be noticed that the discharge of mortgage referred to in clause 4.2a(ii) which the vendor is to supply on completion, is not a discharge of the mortgage which Mr Finn was to supply, but the mortgage over the freehold properties which Finns Bins Investments was to give to Mr Mikosic and and Mr Witham on completion. There is something wrong here because the company not the purchasers owned the freehold properties and it would be absurd to provide a discharge of it at the moment when it was given. The discharge of the mortgage was probably intended to be a discharge of the mortgage to be given by Mr Finn.

23 Mortgage AD432195T obviously relates to clause 2A.1(b) in some way. However although it mentions clause 2A.1(b) it was not given in accordance with it because it was given to Sanwick and not to the vendors. The first page of the mortgage on a printed form says that Mr Finn mortgages to Sanwick his interests in the land and that the provisions of Annexure A are incorporated. So to identify what the document secures it is necessary to refer to Annexure A: there is no other source. Annexure A refers to incorporating Memorandum Q860000. This document was not put in evidence and it was never suggested that it contained any relevant provision. Clauses 2 and 3 are as follows:

2. Mortgage

This Mortgage secures repayment by Finns Bins Investments Pty Limited of the loan of $300,000 (“the Principal Sum”) made pursuant to Clause 2A.1(b) of the Share Sale Agreement between Tony Mikosic and Noel Witham, Lithgow Project Development Pty Limited ACN 102 169 184 and Finns Bin Investments Pty Limited ACN 003 344 518..

3. The Principal Sum is repayable by the Mortgagor on or prior to 5 October 2007 failing which the Mortgagor will pay to the Mortgagee interest on the principal sum calculated at the rate of twelve per centum (12%) per annum computed from 5 October 2007 to the date of repayment.

24 The loan referred to, repayment of which by Finns Bins Investments is secured, is a loan by Mr Mikosic and Mr Witham, and no result is achieved by giving Sanwick security that Finns Bins Investment will repay the loan to somebody else. The provision of clause 3 "The Principal Sum is repayable by the mortgagor on or prior to 5 October 2007 ..." departs from what the Share Sale Agreement provides for about when the loan referred to as the principal sum is repayable, but does not alter the identification of the principal sum as the sum payable to Mr Mikosic and Mr Witham.

25 Sanwick's counsel contended to the effect that when the whole mortgage is taken together including the reference to the principal sum being repayable in paragraph 3 the document should be understood as charging the property to secure the payment of $300,000.00 to Sanwick on or by 5 October 2007. I did not think that the document should be read that way. The words used in it do not support that reading. Their meaning is altogether different. It contains no personal covenant or obligation by Mr Finn to pay any sum of money. It expressly says that it secures repayment by Finns Bins Investments of a loan, specifically the loan referred to in clause 2A.1(b) which is a loan by and repayable to Mr Mikosic and Mr Witham (on the convention that the loan existed, although it did not).

26 Counsel also contended that it should be understood or inferred that there was an assignment of the loan from Mr Mikosic and Mr Witham to Sanwick. I did not accept this contention because there is no evidence of any acts or events which could constitute an assignment. An assignment must be in writing if it is to be made under s 12 of the Conveyancing Act 1919 and it is plain that there is no such writing. There is no reference to any assignment anywhere in the evidence of persons involved, and there is no reference to the concept of assignment in the messages produced with Mr Damcevski's affidavit which formed part of the negotiations and arrangements in the period 15 to 18 September 2007.

27 The terms of the mortgage show that Mr Finn intended to grant a mortgage to Sanwick, but what he intended it to secure can be understood only from the terms of the document itself which did not refer to any obligation owed to Sanwick. In my opinion the mortgage does not operate to secure any money in favour of Sanwick. Sanwick’s claim should be dismissed for this reason.

28 I turn to issues which would fall to be determined if my conclusions are wrong. Most of the argument before me related to setting aside transactions in bankruptcy and to ss 120 to 123 of the Bankruptcy Act 1966, most particularly to the Sanwick’s reliance on a defence under s 123(1). Section 121 is not involved. Section 122 was relied on by the Cross-claimant’s counsel. The provisions of s 122 apply, subject to the important question whether Sanwick falls within the reference to a creditor in subs (1). At the time the mortgage was granted the mortgage clearly had the effect of giving Sanwick a preference, a priority and an advantage over other creditors who then existed.

29 It was contended that the mortgage was not a transfer of property under s 122: or under s 120. Each section contains a definition of inclusion of "transfer of property": see s 122(8), s 120(7). These definitions do not assist determination whether a mortgage is a transfer of property. Property is defined in wide terms in s 5(1):

property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.

This definition particularly its reference to any interest incident to any real property extends my opinion to a security interest over land under a mortgage registered under the Real Property Act 1900. The grant of a mortgage, bringing a security interest into existence, falls within para (b) of the definitions in ss 120(7) and 122(8).

30 In my opinion Sanwick was not a creditor of Mr Finn at the time when the mortgage was granted, purportedly on 15 September but more probably on 18 or 19 September: nor was it a creditor on 26 September when the mortgage was registered and took full effect. The relationship of debtor and creditor if it existed could only have been created by the mortgage itself: there was no other relationship between them. If there was an assignment it was an assignment of money lent to Finns Bins Investments, not to Mr Finn. For this reason s 122 does not operate.

31 In my opinion the mortgage falls within s 120 of the Bankruptcy Act. The mortgage is a transfer of property for the same reasons as those I gave under s 122. Sanwick gave no consideration to Mr Finn for the mortgage. Sanwick or rather its solicitor received $100,000.00 of the deposit, and also received the mortgage, and treated that as sufficient reason not to go ahead with its intended auction of the security property, in which Mr Finn and Finns Bins Investments owned no interest. The arrangement gave a commercial advantage to Finns Bins Investments and less directly to Mr Finn in that Mr Finn wished Finns Bins Investments to acquire shares in Lithgow Property Development which owned the land to be auctioned. Sanwick did not give any consideration to either of them.

32 If it were necessary to address market value, giving security in the nature of a guarantee for someone else's debt has I suppose a market value, as insurance companies take premiums for giving such guarantees: but whatever that market value is, no consideration at all was given. Plaintiff's counsel referred to advantages, not readily evaluated in money or market value, which Sanwick conferred on Lithgow Property Development by cancelling the auction. What is relevant is consideration given to the person who later becomes a bankrupt. Consideration given to someone else is irrelevant to the purposes of legislation directed to protecting the estates of bankrupts from undervalued transactions. On the assumption (contrary to my earlier holding) that the mortgage had some effect, the mortgage is void against the Cross-claimant under s 120(1).

33 I hold that the defence under 123(1) is not available to Sanwick. The transactions was not a transaction for market value, referred to in para (b) and (c), and was not a transaction in good faith and in the ordinary course of business referred to in (g). There was no relevant lack of good faith as Sanpine and those conducting his affairs had no knowledge of Mr Finn's insolvency: practically no knowledge of Mr Finn at all. However the transaction was not in the ordinary course of business. It is quite an ordinary event for the director of a proprietary company to incur personal liability for its obligations and to provide security. However there were events in this transaction which have nothing to do with the ordinary course of any business: the context of urgency and impending catastrophe caused by the imminent mortgagee auction, of Lithgow Property Development and its directors obtaining a mortgage granted by Mr. Finn in favour of Sanpine, although Mr Finn had no dealings with Sanpine, and passing the mortgage on as if it were a bank note, as a payment towards or an assurance or indication of some future payments towards their mortgage debt: none of these are things which ordinarily happen. They could only happen in a credit crisis. The terms of the mortgage are unlike anything one might ever see in everyday commerce. The transaction was distorted and strange and could only be the product of desperate expedients in a crisis. It has nothing to do with the ordinary course of business and the defence is not available.

34 For these reasons the Cross-claim succeeds and the plaintiff is not entitled to any remedy under s 66G. I have not examined whether the plaintiff as a mortgagee is entitled to rely on s 66G against Mrs Finn, a co-owner not otherwise involved in the events.

35 Orders:

(1) On the plaintiff’s claim give judgment for the defendants with costs.

(2) On the Second Cross-claim declare that no money and no obligation to pay any money is secured to the cross-defendant Sanwick Pty Ltd by Mortgage AD 432 195T over the land in Certificate of Title Folio Identifiers 1/711399 and 11/SP53906.

(3) Order that the mortgage be delivered up and cancelled under the further directions of the Court.

(4) Declare that Peter Robert Finn, a bankrupt and his bankrupt estate are not liable to the cross-defendant, Sanwick Pty Ltd under the mortgage in any respect.

(5) Declare that the mortgage is void against the cross-claimant under s 120(1) of the Bankruptcy Act 1966 (Cth).

(6) Order that the cross-defendant pay the cross-claimant’s costs of the Second Cross-claim.

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LAST UPDATED:
3 March 2009