NSW Caselaw
New South Wales Court of Appeal
CITATION: MITZEV v FOXMAN [2007] NSWCA 273
HEARING DATE(S): 25 September 2007
JUDGMENT DATE: 5 October 2007
JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Basten JA at 3
(1) Allow the appeal and set aside orders 1, 4 and 5, made in the Equity Division on 14 December 2006.
(2) Order that the Respondent pay to the Appellant the sum of $50,405.18, or such other amount as was received by the Respondent from the trustee for sale, upon sale of the property, together with interest thereon from the date on which the proceeds of sale were obtained by the trustee until the date of payment to the Appellant, such interest to be calculated in accordance with the rate prescribed in Schedule 5 of the Uniform Civil Procedure Rules. DECISION: (3) Order that the Respondent pay the Appellant's costs in this Court and in the Court below.
(4) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal.
CONVEYANCING – vendor's lien – vendor requested "Credex dollars" as part payment for sale of property – whether "Credex" trading scheme was in operation at time of sale – whether valuable consideration given by purchaser
CATCHWORDS: CORPORATIONS – deregistered corporation restored to register – effect of restoration – Corporations Act 2001 (Cth) s 601AH
REAL PROPERTY – indefeasibility of title – personal equities – effect of vendor's lien
LEGISLATION CITED: Corporations Act 2001 (Cth), s 601AH Real Property Act 1900 (NSW), ss 42, 43
Ambulance Service of New South Wales v Worley (No. 2) [2006] NSWCA 236 Aronis v Hallett Brick Industries Ltd [1999] SASC 92 Bahr v Nicolay (1988) 164 CLR 604 Breskvar v Wall (1971) 126 CLR 376 CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690, (2006) 201 FLR 296 GIO General Ltd v Sabko Pty Ltd [2007] NSWSC 251; (2007) 25 ACLC 935 CASES CITED: Heydon v NRMA Ltd (No. 2) (2001) 53 NSWLR 600 IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466 Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125
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