IMB v Nallathambi [2009] NSWSC 1387

In this case there was a surplus after the lender exercised its power of sale. No agreement was reached among the parties who had a potential interest in the surplus. Accordingly, the lender washed its hands by paying the money into court pursuant to s.95 Trustee Act 1925 (NSW). This application was brought by the registered second mortgagee to claim the surplus from the court. The second mortgagee was able to show that its mortgage secured a sum considerably in excess of the surplus funds. It also joined all the former caveators to the proceedings and none of them resisted the claim. The court accordingly made the order sought.

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