Bond Global Capital Pty Ltd v Austral Developers Pty Ltd

Medium Neutral Citation: Bond Global Capital Pty Ltd v Austral Developers Pty Ltd [2025] NSWSC 754

Hearing dates: 11 July 2025

Date of orders: 15 July 2025

Decision date: 15 July 2025

Jurisdiction: Equity - Commercial List

Before: Brereton J

Decision: Except in relation to matters not in contest, the plaintiff’s application for summary judgment is dismissed with costs

Catchwords: CIVIL PROCEDURE – summary judgment – whether summary judgment should be ordered in plaintiff’s favour – where plaintiff claims priority over sale proceeds of two properties – where the sale proceeds have been paid into Court – where 11th to 28th defendants claim their interest in the Kelly Street property should prevail – where plaintiff’s equitable claim is based on an unregistered mortgage provided as security under a loan agreement – where 11th to 28th defendants purchased lots in an unregistered plan of subdivision – where contracts were subsequently rescinded and subdivision never occurred – whether 11th to 28th defendants each acquired an equitable interest in the form of a purchaser’s lien – whether 11th to 28th defendants’ rights were mere equities – where allegations of postponing conduct – not an appropriate matter for summary judgment in relation to matters in contest

Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: AAN MP Pty Ltd as trustee for the AAN MP Unit Trust v Camilleri [2023] NSWSC 737
Elderly Citizens Homes of SA Inc v Balnaves (1998) 72 SASR 210
GPI Leisure Corp Ltd v Yuill (unreported, Supreme Court of New South Wales, Young J, 6 August 1997)
Hewett v Court (1983) 149 CLR 639; [1983] HCA 7
Slan v Edgerly [2008] NSWSC 1316
1128 CG Pty Ltd as trustee for the 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd [2025] NSWSC 563

Texts Cited: N.A.

Category: Principal judgment

Parties: Bond Global Capital Pty Ltd (first plaintiff)
Mohammed Golam Mostafa Bhuilan (11th defendant)
Mynul Chowdhuri (12th defendant)
Muhammed Muhitur Rahman (13th defendant)
Shammi Rahman (14th defendant)
Sanyia Afraz Abbasi (15th defendant)
Zahid Warraich Mahmood (16th defendant)
Sehr Naushillah (17th defendant)
Omar Farooq Jan (18th defendant)
Ali & Nahar Pty Ltd (ACN 603 249 305) as trustee for the F & N Super Fund (19th defendant)
Sabah Faryal Siddiqi (20th defendant)
Zafar Shabir Memon (21st defendant)
Quratulain Zafar (22nd defendant)
Imran Sajjad Hashmi (23rd defendant)
Parveen Hashmi (24th defendant)
Abu Md Ahan Ullah (25th defendant)
Farhana Sultana (26th defendant)
Syed Shah Habib Alam (27th defendant)
Wendy Anne Alam (28th defendant)

Representation: Counsel:
P Newton SC (first plaintiff)
J Parrish (11th to 28th defendants)
Solicitors:
ERA Legal (first plaintiff)
Greenwood Lawyers (11th to 28th defendants)

File Number(s): 2024/394511

Publication restriction: N.A.

JUDGMENT

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].

7. For the following reasons, the plaintiff’s notice of motion, in so far as it concerns the Kelly Street property, should be dismissed with costs.

8. The application is resolved by reference to three related but conceptually distinct matters.

Did the 11th to 28th defendants have no equitable interest?

9. The plaintiff contended that the 11th to 28 defendants had no equitable interest in the Kelly Street property; rather they had, at most, rights in personam against the vendor, which are sometimes referred to as mere equities. The plaintiff relied heavily on the recent decision in 1128 CG Pty Ltd as trustee for the 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd [2025] NSWSC 563. That case has some close factual similarities to the present one, but with an important difference. Pike J considered the rights of “Non-Rescinding Purchasers” who had entered into contracts to purchase lots to be created by a subdivision. His Honour concluded at [98] that those purchasers did not have an equitable interest in the land that could compete in a priority fight with the holder of an equitable interest in the land. That was because their rights were contingent upon the subdivision of land, and were mere equities. The plaintiff here contends that the 11th to 28th defendants’ rights bear the same character.

10. The 11th to 28th defendants contend that their rights are not mere equities. They contend that their position differs from those of the purchasers in 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd because they have rescinded the purchase contracts. They contend that their equitable interest is a purchaser’s lien: Hewett v Court (1983) 149 CLR 639 at 645 (per Gibbs CJ), 650 (per Murphy J) and 663 (per Deane J). That lien, they contend, existed from the time they paid any part of the purchase money to Austral: Elderly Citizens Homes of SA Inc v Balnaves (1998) 72 SASR 210 at 230; Slan v Edgerly [2008] NSWSC 1316 at [19]. They (nearly) all paid all their instalments before the plaintiff made the loan.

11. The 11th to 28th defendants contend that the equity that was relevant in 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd was the right that the purchasers, as non-rescinding purchasers, had to enforce the vendor’s promise to convey the lots in the subdivided land. The fulfillment of that promise was contingent upon the subdivision, with the consequence that the purchasers did not have a proprietary interest in any parcel of land. Conversely, the 11th to 28th defendants contend that the equity they rely upon, the purchaser’s lien, is a different equity and is not contingent upon a subdivision. Rather, it is an equity that protects them, as purchasers, when the contract fails, which occurred when the contracts were rescinded, and attaches to the unsubdivided land as referred to in the various contracts for sale and purchase of land. They contend that the difficulty that confronted the non-rescinding purchasers in 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd does not stand in their way, as they have rescinded the contracts. They contend that the subdivision was irrelevant to the existence of the purchaser’s lien.

Was there postponing conduct?

13. The plaintiff contends that even if the 11th to 28th defendants had an equitable interest in the Kelly Street property which was earlier in time, that interest would be postponed to their later equitable interest because the 11th to 28th defendants did not lodge caveats, and so there was postponing conduct. They rely on the analysis in 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd at [121]-[129]. At present, the plaintiff has not pleaded the postponing conduct on which it would rely, and the 11th to 28th defendants have not pleaded any response. Whether or not there has been postponing conduct on the part of the 11th to 28th defendants is largely a question of fact that cannot properly be determined in this application for summary judgment. It is a matter that should be determined at trial based on pleadings and evidence.

A mere equity case?

14. The plaintiff contended that the 11th to 28th defendant’s interests in the Kelly Street property were (at most) mere equities and that its subsequent equitable interest prevailed because it was taken without notice. The question of notice would raise possible factual matters that are ill-suited for resolution on a summary basis. The plaintiff contends, however, that the Commercial List Cross-Claim Statement filed by the 11th to 28th defendants does not allege that the plaintiff had notice of the interest of the 11th to 28th defendants, and so the issue of notice does not arise.

15. Counsel for the 11th to 28th defendants acknowledged that his clients do not plead (in the alternative) that their interests are mere equities and the plaintiff took its equitable interest with notice of those equities. He submitted that on the facts available to the 11th to 28th defendants at present, they cannot responsibly plead that the plaintiff had notice, whether actual or constructive, of their interests.

16. As I have observed, it seems likely that there will be a dispute at trial about whether there was postponing conduct on the part of the 11th to 28th defendants. The issue has not been ventilated yet in the pleadings and so the scope of that dispute is unknown. It is possible that there will be discovery relating to the question of postponing conduct. It is possible that the evidentiary framework will develop such that the 11th to 28th defendants will secure material that will enable them to contend that the plaintiff was on notice of the interests of the 11th to 28th defendants. This is speculative, but is another reason why the plaintiff’s claim is best determined in the ordinary way at trial, rather than summarily.

Uncontested matters

17. There was no contest from any party concerning the plaintiff’s rights to the proceeds of sale paid into Court as a consequence of the sale of the Werrington County property. There is no reason why they should not have orders that those proceeds be paid to it. The plaintiff also seeks declaratory relief. I do not see the utility in granting declaratory relief. The question of utility was not addressed at the hearing and so if the plaintiff wishes to press for declaratory relief there may be a need for a further short hearing. I also note that there is authority that declarations on an application for summary judgment should only be made in exceptional circumstances: GPI Leisure Corp Ltd v Yuill (unreported, Supreme Court of New South Wales, Young J, 6 August 1997) at 12.

18. The plaintiff also seeks judgment against the first and sixth defendant. They were guarantors (although there is some confusion in the documentation about whether the first defendant is a guarantor or borrower). They are in liquidation, but the plaintiff has leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to proceed against them. They did not appear and did not contest the application. The plaintiff should provide a form of order that they seek against the first and sixth defendant in light of these reasons. In so far as there is to be judgment relating to an amount of money, that amount should be specified. It may be appropriate to order that the plaintiff not be entitled to enforce any judgment against the first and sixth defendant otherwise than by lodging a proof of debt. If necessary, the plaintiff should provide a short note explaining precisely the reasons for the proposed form of order.

Orders

19. The order of the Court is that the parties are to provide proposed short minutes of order that would give effect to these reasons to my Associate by 5pm on Thursday 17 July 2025.

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Amendments

18 July 2025

Amended Defendant's Solicitors to "Greenwood Lawyers"