Guo v Wang

File Number(s): 2025/00248669

Publication restriction: Nil

JUDGMENT (EX TEMPORE revised)

1. The plaintiff, Wei Guo, holds unregistered equitable mortgages over seven properties located in Sydney, NSW (Security Properties) which are owned by either or both of the first and second defendants, Mr Nan Wang and his wife, Mrs Yan Wang (Mr and Mrs Wang). The equitable mortgages secure a loan of $400,000 made by Mr Guo to Mr and Mrs Wang on 28 July 2023. Following default in the repayment of the loan, Mr Guo seeks orders for monetary judgment and for the judicial sale of the Security Properties.

2. Each property is subject to a first registered mortgage in favour of one of National Australia Bank Ltd (NAB), Westpac Banking Corporation (Westpac) or Australia and New Zealand Banking Group Ltd (ANZ) who are the third, fourth and fifth defendants respectively.

3. The proceedings were commenced by the filing of a statement of claim on 30 June 2025. Mr and Mrs Wang filed a defence on 4 September 2025. Westpac has filed a submitting appearance and NAB and ANZ have filed notices of appearance. Mr and Mrs Wang have not filed any evidence. The only defendant to file any evidence is ANZ (see below at [8]).

4. Mr Zhao, solicitor, appeared for Mr and Mrs Wang at the hearing today, but with instructions limited to making submissions regarding costs. Mr Wang observed the proceedings via AVL and Mrs Wang was present in Court. NAB and ANZ were each represented at the hearing. Except in relation to one matter concerning costs dealt with below, NAB and ANZ did not oppose the orders ultimately sought by the plaintiff at the hearing. Ms J Mee of counsel appeared for the plaintiff and the Court was assisted by her helpful submissions.

5. For the reasons set out below, I am satisfied that the Court should make the orders sought but will allow the first and second defendants time to make submissions on costs.

Evidence

6. Mr Guo relies on two affidavits affirmed by him. He also relies on affidavits of service of the statement of claim, a notice to occupier pursuant to r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and a Possession of Land coversheet pursuant to r 6.8A of the UCPR on the occupiers of each of the Security Properties which occurred in July 2025. None of these occupiers has sought to be joined to the proceedings.

7. I am satisfied that all of the documents in relation to the proceedings have been served on Mr and Mrs Wang and they have chosen not to take an active role in the proceedings beyond authorising Mr Zhao to make submissions on costs on their behalf.

8. ANZ relied on an affidavit of Mr D Mustafa, solicitor, filed and served today which revealed that on 9 April 2026 ANZ obtained judgment in this Court against Mr and Mrs Wang for $1,278,620.20 and possession of three of the Security Properties over which it has a first mortgage (ANZ Security Properties). The lateness of the provision of this affidavit to the plaintiff was the basis for a costs order sought by the plaintiff against ANZ referred to below at [33].

Facts

9. On 28 July 2023, Mr Guo (as lender and mortgagee) and Mr and Mrs Wang (as borrowers and mortgagors) entered into a Deed of Mortgage (Deed of Mortgage). On the previous day Mr and Mrs Wang (as mortgagors) signed mortgage forms in registrable form (mortgage forms) in relation to each of the Security Properties for which they are a registered proprietor. The mortgage forms incorporated the terms of mortgage memorandum Q860000 (mortgage memorandum). Copies of the Deed of Mortgage, mortgage forms and mortgage memorandum are in evidence.

10. The mortgages were not registered, but Mr Guo lodged a caveat on the title of each of the Security Properties

11. By Clauses 3.1 and 3.2 of the Deed of Mortgage Mr Guo (as lender) agreed to lend the amount of $400,000.00 (Loan Amount) to Mr and Mrs Wang (as borrowers). It is admitted in the defence that on or about 28 July 2023, Mr Guo advanced the Loan Amount to Mr and Mrs Wang pursuant to the Deed of Mortgage.

12. In the defence Mr and Mrs Wang admit that by cl 6 of the Deed of Mortgage they were required to repay the Loan Amount on 28 July 2024 (Maturity Date), if they did not comply with the conditions for extension of the loan under clause 6.1.3, and that they did not comply with those conditions.

13. The substance of the defence appears to be an alleged oral agreement of some kind, under which the loan would not be repayable until ‘Southern Ocean Bauxite Pty Ltd repays the Defendants for their investments’. However, Mr and Mrs Wang have not put on any evidence to support this alleged term, which is in any event contrary to the entire agreement clause found in cl 15.2 of the Deed of Mortgage and hence can be disregarded.

Deed of Mortgage

14. Clauses 5.1 and 5.2 of the Deed of Mortgage provided that Mr and Mrs Wang were to pay to Mr Guo interest on the Loan Amount at the rate of 20% per annum, for the period from 28 July 2023 to the Maturity Date, on the Maturity Date.

15. Clause 5.3 of the Deed of Mortgage provided that if Mr and Mrs Wang failed to pay any amount payable by them under that agreement on its due date, default interest will accrue on the outstanding Loan Amount at the rate of 22% per annum (Default Interest), which must be paid immediately on demand.

16. The relevant provisions of the Deed of Mortgage regarding repayment of the Loan Amount, and the consequences of its non-payment, are cl 6, 8, 10, 11 and 12(a) which provide relevantly:

6. REPAYMENT AND PAYMENT

6.1 Repayment of Loan Amount

6.1.1. The Borrower may on any day before the Maturity Date (the “Early Repayment Date”), repay to the lender the whole or any part of the Loan Amount plus the interests of the full Loan Amount accrued up to and including the Early Repayment Date.

6.1.2 If the Borrower repays any amount in accordance with clause 6.1.1 more than once during the Initial Term, the interest accrued shall be calculated based on the balance of the Loan amount from the day after the last Early Repayment Date up to and including the new Early Repayment Date.

6.1.3 If the Borrower repays any amount in accordance with clauses 6.1.1 and 6.1.2 during the Initial Term, then on the Maturity Date, the Borrower must repay the Lender at least the balance of half of the Loan Amount and the interests for the balance of the whole of the Loan Amount from the day after the last Early Repayment Date up to and including the Maturity Date.

6.1.4 If at least half of the Loan Amount and accrued interests has been repaid by the Borrower in accordance with clause 6.1.3, the lender agrees to extend this Agreement for another 12 months with the same Interest Rate for the balance of the Loan Amount after the Maturity Date.

…

8. REGISTRATION OF SECOND MORTGAGE

The Borrower must:

(a) for the purpose of clause 7.2, negotiating with the First Mortgagee in good faith for any issues pertaining to the Secured Properties;

(b) cooperate if required when registering the Lender as the second Mortgagee on the Secured Properties;

(c) if a Trigger Event takes place, disposing of any of the Secured Properties for the purpose of discharging the Borrower’s obligations owing to the First Mortgagee and the Lender. The Borrower must engage a reputable real estate agent in the area of the Secured Properties and sale of the Secured Properties by way of public auction at the engaged real estate agent recommended reserve price within 3 months after a Trigger Event takes place. The Borrower can deal with the proceeds from the sale of the Secured Properties in the following orders:

(1) discharging the Borrower’s liability to the First Mortgagee;

(2) paying real estate agent’s commission and other cost (including legal cost) in sale of Secured Properties;

(3) performing the Borrower’s obligation under this agreement and paying the Lender all outstanding Loan Amount and interest

(4) pay the balance of the proceeds to the Borrower;

(d) when a Trigger Event takes place, any other activities the Lender considers appropriate and necessary.

…

10. TRIGGER EVENT

A Trigger Event at the opinion of the Lender has occurred if:

(a) The Borrower failed to repay half of the Loan Amount and the accrued interests calculated in accordance with clauses 6.1.1 and 6.1.3;

(b) the Borrower is in default under the facility it has entered into with the First Mortgagee;

(c) the First Mortgagee exercised its right to dispose of any or both of the Secured Properties;

(d) an Event of Default has occurred; or

(e) any other events the Lender considers influential on its rights over the Secured Properties or under this Agreement.

…

11. POWER OF SALE

If a Trigger Event takes place and the Borrower failed to engage a real estate agent under clause 8(c) within 3 months to dispose the property, the Lender may step in and affect a disposal of the property for the purposes of discharging the Borrower’s obligations owing to the First Mortgagee and the Lender. The Lender must engage a reputable real estate agent in the area of the Secured Properties and sale of the Secured Properties by way of public auction at the engaged real estate agent recommended reserve price. The Lender must deal with the proceeds from the sale of the Secured Properties in the following orders:

(1) discharging the Borrower’s liability to the First Mortgagee;

(2) paying real estate agent’s commission and other cost (including legal cost) in sale of Secured Properties;

(3) performing the Borrower’s obligation under this agreement and paying the Lender all outstanding Loan Amount and interest; and

(4) pay the balance of the proceeds to the Borrower.

…

12. EVENTS OF DEFAULT

An Event of Default at the opinion of the Lender has occurred if:

(a) there is default (other than by the Lender) in the performance of any term contained in or implied by this Agreement, any Security, or any other collateral document or securities; or

…

at which point, this Agreement is terminated and all amounts owing under this Agreement will be deemed to be due and payable and the Borrower must immediately pay all amount owing to the Lender.

17. In summary under these provisions:

18. If a Trigger Event (as defined in cl 10) occurs, the borrowers are required to take the steps referred to in cl 8(c) and if they fail to do so, the lender is entitled to exercise his power of sale under cl 11.

19. A Trigger Event includes a failure by the borrowers to repay 50% of the Loan Amount (and accrued interest) under cl 6.1.1 to cl 6.1.3. Those clauses contemplate that if the borrowers repay at least 50% of the Loan Amount (together with accrued interest) by the Maturity Date (being 28 July 2024) the repayment date for the balance of the Loan Amount would be extended for a further 12 months.

20. As it happened, no part of the Loan Amount was repaid before the Maturity Date and accordingly, the Trigger Event specified in cl 10(a) occurred, and the borrowers were required to take the steps set out in cl 8(c). It is clear from the evidence that they failed to do so, and consequently their obligation under that clause was not complied with.

21. This had two consequences under the Deed of Mortgage. First, there was an event of default under cl 12(a) with the result that the agreement terminated and all amounts owing to the lender became immediately due and payable. By cl 15.7, the obligation to pay interest at the default rate on the amount owing survived termination of the agreement.

22. Secondly, the lender became entitled to exercise the power of sale under cl 11. However, the lender is not exercising this power of sale, having elected instead to seek a judicial sale.

23. I note one other feature of the Deed of Mortgage which is that beside the description of each Security Property in cl 3 of the information table in the Deed of Mortgage there is a reference to a ‘security amount’ for that property. This is stated to be $50,000 for each Security Property except for the one at St Ives for which it is $190,000.

24. The only provision of the Deed of Mortgage which refers to the concept of a ‘security amount’ is cl 9 which provides:

9. DISCHARGE OF MORTGAGE

Upon the Borrower’s every successful repayment amounting to the Security Amount for each Security Property, the Lender must within 5 business days discharge the mortgage on that Security Property and release the mortgage lien held against that Security Property. Upon the Borrower repays the full Loan Amount and interests, the Lender must within 5 business days discharge all mortgage on the Security Properties.

20. What cl 9 contemplates is that during the currency of the loan, the lender would on the borrowers’ repaying an amount equal to the ‘security amount’ for a particular Security Property discharge the mortgage over that property. That of course has not occurred, as the borrowers have not repaid any part of the Loan Amount to Mr Guo. Accordingly, clause 9 has ceased to have any relevance.

21. This construction of clause 9 is confirmed by cl 11(3) which contemplates that following exercise of the power of sale, the sale proceeds would be applied, after discharging amounts owing to the first mortgagee of each property and the costs of the sale transaction, to paying ‘all outstanding Loan Amount and interest’ without any reference to a limit for the security amount.

22. There is evidence from Mr Guo in his second affidavit regarding market appraisals of the market sale value of each of the Security Properties on 24 April 2026. Collectively, their estimated market value is well in excess of the debt owing to Mr Guo, but this does not take into account the total amount owing to Westpac, NAB and Westpac (as to which the only evidence is that ANZ has obtained the judgment debt referred to earlier).

Relevant principles

23. The relevant legal principles to be applied in determining whether there is an equitable mortgage and whether an application for judicial sale should be granted were summarised by McGrath J in Bizcap Au Pty Ltd v Vo [2025] NSWSC 518 at [32]-[35]:

An equitable mortgage may be created by an agreement in which the parties demonstrate an intention to create a present security: Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194, Young J at 200, citing Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, Buckley LJ (with whom Brandon and Brightman LLJ agreed) at 595.

An equitable mortgage will also arise where there is a specifically enforceable agreement to create a mortgage: National Australia Bank Ltd v Clowes [2013] NSWCA 179, Leeming JA (with whom McColl and Macfarlan JJA agreed) at [25].

An unregistered mortgage is regarded in equity as conferring an equitable charge and an order for judicial sale is the standard way of enforcing an equitable charge: King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076, Campbell J at [81].

The relevant principles regarding an application for a judicial sale of real property by an equitable mortgagee/chargee were conveniently summarised in Guo v Option Holdings Pty Ltd [2024] NSWSC 1506, by Peden J at [43]–[45]:

[43] It is unclear on the authorities as to whether an equitable chargee is entitled to an order for judicial sale as of right, or whether the Court retains a discretion to withhold relief: see the discussion of authorities in Bellevarde Constructions Pty Ltd v Cosmas Pty Ltd [2016] NSWSC 406 at [25]–[35] (Stevenson J).

[44] I consider the better view is that the power to order a judicial sale of Torrens land upon default arises from the Court’s inherent equitable jurisdiction, and when considering whether to order judicial sale, the Court is exercising a discretion: Morris Finance Ltd v Free (2017) 18 BPR 37,223; [2017] NSWSC 1417 at [34] (Ward CJ in Eq, as the President then was). It may be that judicial sale is the standard remedy sought by an equitable chargee to enforce their equitable interest: Thorn v Boyd [2016] NSWSC 1344 at [64] (Sackar J). However, as an equitable remedy, the Court ought to have regard to the position of those who will be adversely affected by an order before making it, lest the remedy itself become “an instrument of injustice”: Australia and New Zealand Banking Group Pty Ltd v Donnelly [2012] NSWSC 161 at [29]–[30] (Garling J), discussed with approval in Harriette & Co Pty Ltd v Platine Property Development Pty Ltd (No 2) [2022] NSWSC 1611 at [43] (Walton J) and ACT Plasterboard Pty Ltd v Pohorukov [2024] NSWSC 218 at [15] (Peden J).

[45] Consistent with this view, Campbell J (as his Honour then was) observed in King Investment Solutions Pty Ltd v Hussain (2005) 13 BPR 25,077; [2005] NSWSC 1076 that “without factual material by reference to which the discretion can be exercised, which includes at least the value of the property and the amount owing on the security of it, the exercise of the discretion itself is likely to miscarry”: at [119]; see also [100]–[101].

24. These observations were followed by Pike J in Investment Group Australia Pty Ltd v Vinrec Australia Pty Ltd (in liq) [2025] NSWSC 612 at [27].

Determination

25. The Deed of Mortgage together with the mortgage forms created an equitable mortgage over each of the Security Properties to secure the amount owing by Mr and Mrs Wang to Mr Guo under the Deed of Mortgage.

26. Mr and Mrs Wang admit in the defence that they failed to repay to Mr Guo any of the Loan Amount of $400,000 on the Maturity Date or subsequently, and have failed to pay to Mr Guo any of the interest on the Loan Amount, for the 12-month period up until the Maturity Date (being $80,000). On or about 26 November 2024, Mr Guo received $10,000.00 from Mr and Mrs Wang in respect of unpaid interest, and that is the only amount paid by them to date.

27. As a result of the breaches referred to in the previous paragraph, Default Interest (at 22% per annum) became payable on the Loan Amount from the Maturity Date (cl 5.3 of the Deed of Mortgage).

28. Multiple demands for payment have been made, but not honoured.

29. Accordingly, Mr Guo is entitled to judgment for the outstanding amount, which as at the date of hearing is $624,301.40.

30. I am satisfied that it is appropriate to make orders for judicial sale of the Security Properties (other than the ANZ Security Properties which are to be sold by ANZ in exercise of its power of sale), noting that (a) while the amount owing to the first mortgagee of each property (NAB and Westpac) is not known, each has been joined and does not oppose the orders; (b) the orders contain a mechanism for the debts owing to the first and second mortgagees to be paid out of the proceeds of sale in accordance with their priority and any surplus to be paid to Mr and Mrs Wang; and (c) although there is a caveat on the title of three of the Security Properties, each of these caveats is later in time to Mr Guo’s caveat and the position of each caveator is protected in the proposed orders.

31. Further, it is appropriate that the plaintiff be appointed to sell the Security Properties (other than the ANZ Security Properties) rather than an independent third party as each interested party has been notified and the plaintiff has a contractual power of sale under cl 11 of the Deed of Mortgage.

Costs

32. At the hearing the plaintiff sought an order that the first and second defendants pay the plaintiff’s costs of the proceedings on an indemnity basis, relying principally on the contractual right of indemnity in cl 4 of the Deed of Mortgage. Mr Zhao sought time to make submissions on costs on behalf the first and second defendants. I will make orders to allow this to occur with a final determination of the appropriate costs order to be made on the papers.

33. The plaintiff also sought an order that ANZ pay the plaintiff’s costs thrown away by reason of ANZ bringing the proceedings in this Court which resulted in the judgment referred to at [8] above, due to the lateness of being informed by ANZ that it was proposing to obtain possession of the ANZ Security Properties and enforce its power of sale. While there was delay in ANZ informing the plaintiff that on 9 April 2026 it had obtained orders for judgment and possession of those properties, the plaintiff has been on notice since 4 July 2025 that ANZ proposed to exercise its power of sale over those properties. In all the circumstances, the plaintiff could not reasonably have expected that an order for judicial sale would be made in his favour over those properties. Accordingly, I will not make an order for costs against ANZ.

Conclusion

34. The orders of the Court are as follows:

Debt

1. Judgment for the Plaintiff against the First and Second Defendants in the amount of:

(a) $400,000.00 (being the principal amount advanced (Loan Amount)); plus (b) $80,000.00 (being interest on the Loan Amount for the 12-month term of the loan, from 28 July 2023 to 28 July 2024, at the rate of 20% per annum); plus (c) Default interest on the Loan Amount from 28 July 2024 to the date of judgment, at the rate of 22% per annum, less the amount of $10,000 repaid; being $144,301.40 as at 29 April 2026 and continuing until judgment at the rate of $241.10 per day,

pursuant to the Deed of Mortgage dated 28 July 2023 (Deed of Mortgage) (the total (being $624,301.40 as at 29 April 2026) being the Judgment Debt).

2. In relation to the costs of the plaintiff to be paid by the first and second defendants:

(a) the first and second defendants to file and serve any written submissions (of no more than 3 pages) and evidence in relation to costs by 4pm on Tuesday 5 May 2026. (b) the plaintiff to file and serve any written submissions (of no more than 3 pages) and evidence in reply by 4pm on Thursday 7 May 2026.

3. The determination of the final order as to costs payable by the first and second defendants to the plaintiff will be made on the papers.
4. Order pursuant to section 101 of the Civil Procedure Act 2005 (NSW) that post-judgment interest shall run on the Judgment Debt pursuant to Order (1) from the date of judgment and on the costs pursuant to the order made in accordance with Order 3 above from the date of that order, in each case at the rate of 22% per annum.

Equitable mortgages over Security Properties

1. A declaration that each of the following properties is the subject of an equitable mortgage in favour of the Plaintiff as mortgagee (Security Properties) in order to secure all amounts owing to the Plaintiff under the Deed of Mortgage, Mortgage Forms and Mortgage Memorandum, including the Judgment Debt (and the costs payable pursuant to the order made in accordance with order 3 above).

| Definition | Folio identifier | Street address | Owner | First mortgagee | | St Ives Property | 10/SP101334 | 10/7-11 College Crescent, St Ives NSW 2075 | Yan Wang Nan Wang | NAB | | Lot 16 George Street Property | 16/SP92585 | 16/2-4 George Street, Warwick Farm NSW 2170 | Nan Wang | Westpac | | Lot 18 George Street Property | 18/SP92585 | 18/2-4 George Street, Warwick Farm NSW 2170 | Yan Wang | Westpac | | Lot 21 George Street Property | 21/SP92585 | 21/2-4 George Street, Warwick Farm NSW 2170 | Nan Wang Yan Wang | Westpac | | Browne Parade Property | 24/SP90731 | 24/3-5 Browne Parade, Warwick Farm NSW 2170 | Nan Wang Yan Wang | ANZ | | Lachlan Street Property | 31/SP90235 | 31/41-43 Lachlan Street, Warwick Farm NSW 2170 | Nan Wang Yan Wang | ANZ | | Liverpool Property | 6/SP91471 | 6/93-95 Campbell Street, Liverpool NSW 2121 | Yan Wang Nan Wang | ANZ |

Judicial sale of Sale Security Properties

1. An order for the judicial sale of each of the St Ives Property, the Lot 16 George Street Property, the Lot 18 George Street Property and the Lot 21 George Street Property (collectively, the Sale Security Properties), with the Plaintiff to be appointed as the Court’s agent effecting that sale.
2. As an aid to enforcement of Order (6) above:

(a) An order that, within fourteen (14) days from the date of these orders, the First and Second Defendants deliver up vacant possession of the St Ives Property. (b) An order that, within fourteen (14) days from the date of these orders, the Plaintiff is to notify the First and Second Defendants of whether he requires vacant possession of any or all of the other Sale Security Properties (other than the St Ives Property), or whether he is content to receive possession of any or all of those properties subject to existing tenancies. (c) An order, within 3 days from the date of these orders, that the First and Second Defendants notify the Plaintiff or the Plaintiff’s solicitor of:

(i) The contact details of the existing real estate agents for each of the Sale Security Properties; and (ii) A joint email address, or an email address for each of them, to which the notification under Order 34(7)(b) may be made.

(d) An order that, within fourteen (14) days from the date of the Plaintiff’s notification under Order 34(7)(b):

(i) The First and Second Defendants deliver up possession of the Lot 21 George Street Property; (ii) The First Defendant deliver up possession of the Lot 16 George Street Property; and (iii) The Second Defendant deliver up possession of the Lot 18 George Street Property,

being either vacant possession, or possession subject to existing tenancies, according to the Plaintiff’s notification.

(e) Leave is granted to the Plaintiff to issue a writ of possession, such writ not to be executed before fourteen (14) days from the date of these orders.

3. An order that the Plaintiff is to act in the following fashion with respect to the sale of each of the Sale Security Properties:

(a) The Plaintiff is to act at all times in relation to the sale of each Sale Security Property in accordance with the duties owed by a mortgagee exercising power of sale. (b) The Plaintiff is to engage one or more reputable real estate agents in the areas of the respective Sale Security Properties and arrange for the sale of each Sale Security Property at a public auction, unless inconsistent with the Plaintiff’s duties under Order 34(8)(a) above. (c) The Plaintiff is to:

(i) Consult with the Third Defendant (NAB) with respect to the sale of the St Ives Property (NAB Secur****ed Property), and ascertain from NAB the amount owing to NAB secured against the St Ives Property (NAB Mortgage Debt); and (ii) Consult with the Fourth Defendant (Westpac) with respect to the sale of the Lot 16 George Street Property, the Lot 18 George Street Property and the Lot 21 George Street Property (Westpac Secured Properties), and ascertain from Westpac the amounts owing to Westpac secured against each of those properties (in relation to each respective property, the Westpac Mortgage Debt).

(d) Each of NAB and Westpac (First Mortgagee) is to co-operate with the Plaintiff and promptly provide to the Plaintiff the information in paragraph (c) above and any other information in relation to the NAB Mortgage Debt and the Westpac Mortgage Debt as reasonably requested by the Plaintiff. (e) Unless the Court otherwise orders, the Plaintiff shall not sell:

(i) The NAB Secured Property for less than an amount sufficient to cover the NAB’s Mortgage Debt; or (ii) Any of the Westpac Secured Properties for less than an amount sufficient to cover the Westpac Mortgage Debt in relation to that property.

(f) In the event that the amount that the Plaintiff reasonably believes is likely to be realised or exceeded on a sale of any of the NAB Security Property or Westpac Secured Properties is insufficient to cover the amounts in Orders 34(12)(a), 34(12)(b) and 34(12)(c) and return any amount to the Plaintiff pursuant to the Plaintiff’s equitable mortgage, the Plaintiff shall not sell the property but shall instead cause the matter to be listed before the Court for the purpose of the Court making orders to discharge the order for judicial sale of that property or other appropriate orders.

4. An order that the Plaintiff be empowered to transfer the legal title of each of the Sale Security Properties to any purchaser(s) to effect the sale of that Sale Security Property.
5. An order that the Plaintiff be empowered to issue lapsing notices to the caveators on the title to the Sale Security Properties, on behalf of the registered proprietors, pursuant to section 74J of the Real Property Act 1900 (NSW).
6. An order that on settlement of the Plaintiff’s sale of each Sale Security Property, the relevant First Mortgagee provide to the Plaintiff a discharge of that party’s registered mortgage and any other documents of title in its possession or control as may properly be required for the completion of any such sale, in exchange for payment of the amount then due to the First Mortgagee pursuant to its registered mortgage over the Sale Security Property.
7. An order that the Plaintiff pay the proceeds of sale of each Sale Security Property in the following order:

(a) First, council rates, water rates, any statutory duties and charges; (b) Second, all the Plaintiff’s proper costs and expense relating to the sale of the Sale Security Property; (c) Third, any amount then due to the relevant First Mortgagee pursuant to its registered mortgage over the Sale Security Property; (d) Fourth, the amount due to the Plaintiff secured by the Plaintiff’s equitable mortgage; (e) Fifth, any surplus to be paid:

(i) in the case of the St Ives Property and the Lot 21 George Street Property, to the First and Second Defendants; (ii) in the case of the Lot 16 George Street, Property, to the First Defendant; and (iii) in the case of the Lot 18 George Street Property, to the Second Defendant.

8. The Court notes that:

(a) the Fifth Defendant (ANZ) obtained orders for possession of the Browne Parade Property, the Lachlan Street Property and the Liverpool Property on 9 April 2026, without prior notice to the Plaintiff; and (b) the First and Second Defendants have entered into a contract to sell the Liverpool Property to a third party, which contract became due for completion but which has not yet completed (Liverpool Sale Contract).

9. The First and Second Defendants are ordered to pay the proceeds of sale of the Liverpool Property under the Liverpool Sale Contract in accordance with Order (12) above, as if were a Sale Security Property, provided that if the subsequent caveator on the title disputes the priority of the Plaintiff over that subsequent caveator, the First and Second Defendants are ordered to instead pay the net proceeds of sale, after payment of the amounts in Order (12)(a), (12)(b) and (12)(c), into Court.
10. The Fifth Defendant is ordered to pay the net proceeds of sale of the Browne Parade Property and the Lachlan Street Property, after paying the Fifth Defendant the amounts owing to it that are secured against those properties, as follows:

(a) to the Plaintiff; as to the lesser of the amount secured by the Plaintiff’s equitable mortgage and the amount of the remaining net proceeds of sale for that property; and (b) any remainder to be paid to the First and Second Defendants.

11. If any of the sale of the Liverpool Property, the Browne Parade Property or the Lachlan Street Property have not been completed by the date that is 3 months after the date of these Orders, the Plaintiff has liberty to apply to the Court for orders for the judicial sale of any or all of those properties.
12. Liberty to apply to the Court in relation to any matter arising in relation to the judicial sale of any of the Security Properties or the distribution of the proceeds from those sales, including for the payment of any amount out of Court.

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