Ruling also asks mortgagee of two properties to pay post-sale surplus
The New South Wales Supreme Court has ordered a company, as well as its director and guarantor, to pay loan-related debt to the lender amounting to $2,410,893.11, including the principal sum of $1,086,500 plus interest.
On 3 December 2024, the plaintiff in JimJim Investments Pty Ltd v MBC Miranda Nominees Pty Ltd [2025] NSWSC 1413, filed a statement of claim against the defendants MBC Miranda Nominees Pty Ltd, its director, and BC Invest Loans Pty Ltd.
The proceedings involved the enforcement of a mortgage and guarantee securing a loan that the plaintiff advanced to MBC. The loan amounted to $1,086,500, comprising two tranches of $1m and $86,500.
Although the original arrangements were oral, the parties executed a written loan agreement on 27 January 2022. Under the agreement, the plaintiff was the lender, MBC was the borrower, and its director was the guarantor of MBC’s obligations.
The director executed a separate deed of guarantee relating to two properties in Miranda, NSW.
BC Invest, which had a registered mortgage over the Miranda properties, exercised its right as mortgagee to sell these two properties. BC Invest expected the sale contracts to settle in February 2026.
While the defendants made initial interest payments, they stopped paying either the principal amount or the interest by March 2022. MBC and its director were in default of their obligations under the loan agreement and the guarantee.
The court deemed MBC and its director to have admitted to the allegations in the plaintiff’s claim because they did not file any defence.
The Supreme Court of New South Wales awarded the plaintiff a judgment and costs on the indemnity basis. The court also ordered BC Invest to pay the plaintiff any surplus remaining from the mortgagee sale of the Miranda properties.
First, as requested by the plaintiff, the court saw a proper basis to find an equitable charge in the plaintiff’s favour, securing the judgment sum and its costs of the proceedings, over the Miranda properties.
The court noted that BC Invest’s interest as the registered mortgagee took priority over the plaintiff's secured interest.
In the circumstances, the court found that the director did not become the registered proprietor of the Miranda properties, which remained with MBC. The court saw a sufficient intention on MBC’s part to create an equitable charge in the plaintiff’s favour over the Miranda properties, given MBC’s obligation to offer alternative security.
Next, regarding the plaintiff’s request for BC Invest to pay it any surplus from the sale of the Miranda properties, the court acknowledged that BC Invest did not oppose the plaintiff’s requested order. The court saw a basis to issue the order as a just, swift, and affordable disposition of the proceedings.
The court noted that the surplus amount was relatively small. The court saw no other caveats registered over the Miranda properties and saw no evidence of other potential claimants.
