New Beach Apartments v Epic Hotels [2007] NSWSC 474

In this case the land in question was a development site at 44 New Beach Road, Darling Point. The site had approval for the construction of three two levels apartments. The land has been excavated and the ground-floor concrete slab had been laid but then the borrower had run out of money.

The first mortgagee was owed $7.7 million, the second mortgagee was owed $5.9 million. On 6 March 2007, the borrower entered into a contract to sell the site for $7.75 million. This was enough to payout the first mortgage but would leave nothing for the second mortgagee. The first mortgagee consented to the sale while the second mortgagee refused on the grounds it was not satisfied the best price had been obtained. The offer from the purchaser, it argued, was not the result of a transparent marketing process.

The purchaser issued a Notice to Complete and the borrower approached the Court seeking an order for Judicial sale to override the second mortgage and allow the sale to proceed. Something strange occurred outside the Court on the day of the trial because the purchaser agreed to increase their offer by $400,000. Ultimately the judge based his reasoning on the fact that if the second mortgagee thought the property was worth more than was being offered they had the option to payout the first mortgage and assume control of the sale – that they had not disentitled them to argue against the sale organised by the borrower. The Court accordingly ordered a judicial sale. 

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