Mudge v Business Finance Pty Ltd (Receiver and Manager Appointed) [2021] NSWCA 250

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mudge v Business Finance Pty Ltd (Receiver and Manager Appointed) [2021] NSWCA 250 Hearing dates: 13 October 2021 Date of orders: 20 October 2021 Decision date: 20 October 2021 Before: Gleeson JA at [1] Simpson AJA at [42] Decision: (1) Extend the time for filing of the summons seeking leave to appeal to 6 August 2021. (2) Summons seeking leave to appeal be dismissed. (3) Applicant to pay the respondents' costs in this Court. (4) Notice of motion filed by the applicant on 6 August 2021 be dismissed with costs. Catchwords: APPEALS – application for leave – where mortgagee brought proceeding for removal of caveats lodged by guarantor/mortgagor against two adjoining properties – interlocutory order made for withdrawal of caveats – sale of properties completed – contention that sale of properties unauthorised – whether leave should be granted – whether injustice which is reasonably clear – leave refused Legislation Cited: Conveyancing Act 1919 (NSW), ss 115(3), 170(1)(b) Corporations Act 2001 (Cth), s 420(2)(b) Real Property Act 1900 (NSW), ss 74MA(2), 138(2), (3) Supreme Court Act 1970 (NSW), s 101(2)(c), (e), (m) Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 50.12(1)(a), (c), 51.12(2)(d), 51.41(1) Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39; (2011) 279 ALR 166 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 House v The King (1936) 55 CLR 499; [1936] HCA 40 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89 Paciocco v Australia and New Zealand Banking Group Limited (2016) 258 CLR 525; [2016] HCA 28 Prouten v Chapman [2021] NSWCA 207 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Category: Principal judgment Parties: John Mudge (Applicant) Business Finance Pty Ltd (Receiver and Manager Appointed) (First respondent) Marcus William Ayres in his capacity as receiver and manager of Business Finance Pty Ltd (Receiver and Manager Appointed) (Second respondent) Representation: Counsel: J Mudge (self-represented) (Applicant) S Ipp (Respondent)