Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd

[2016] VSCA 159

Victorian Court of Appeal

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Interrogate

Catchwords

1. Mortgage
2. › Duties of prior mortgagee to subsequent mortgagee
3. › Duty to account
4. › Whether duty arises only where moneys recovered by exercise of mortgagee powers
5. › Whether duty extends to moneys recovered by receiver appointed by mortgagee
1. Mortgage
2. › Mortgagee in possession
3. › Whether mortgagee can be in possession after appointment of receiver
4. › Whether mortgagee exercised control over proceeds of sale to exclusion of receiver
1. Deeds
2. › Whether instrument operative as deed
3. › Intention of parties
4. › Whether words 'Executed as a Deed' sufficient indication of intention
5. › Corporations Act 2001 (Cth), s 127(3)
1. Equity
2. › Estoppel
3. › Estoppel by deed or convention
4. › Whether subsequent deeds acknowledging validity of charge give rise to estoppel
5. › Whether detrimental reliance and unconscionability established

Quick Take

A prior-ranking mortgagee owes a subsequent mortgagee a duty to account only for moneys recovered by virtue of the exercise of the mortgagee's own powers (including as mortgagee in possession), not for moneys recovered by a receiver appointed by the mortgagee, because the receiver acts as agent of the mortgagor. A mortgagee may be treated as in possession of part of the mortgage property despite the appointment of a receiver where the mortgagee in fact exercised control over the relevant proceeds to the exclusion of the receiver. The question whether an instrument is a deed depends on the intention of the parties objectively ascertained, and the words 'Executed as a Deed' on the execution page provide a strong indication of that intention.