NSW Caselaw
New South Wales Supreme Court
CITATION : LAWTEAL PTY. LIMITED v. OFO; 10 CONWAY AVENUE, ROSE BAY PTY. LIMITED v. OFO [2006] NSWSC 365
HEARING DATE(S) : Thursday 1 December 2005
JUDGMENT DATE : 4 May 2006
JURISDICTION : Common Law
JUDGMENT OF : Hall J at 1
DECISION : (a) That the appeal be dismissed. (b) That, pursuant to Part 39 Rule 20 of the Uniform Civil Procedure Rules 2005, the writ of possession issued in favour of the plaintiff in these proceedings on 30 March 2005 is renewed. (c) That the writ of possession referred to in (b) be stayed until 9.00 am, Tuesday 23 May 2006. The Court will hear submissions from the parties as to the form of orders as proposed and any ancillary matters arising in respect to such orders.
CATCHWORDS : Mortgages - defendant in default under each of two mortgages - default judgment entered - writ of possession issued - stay - financial capacity to repay - relief under the Contracts Review Act 1980 (NSW) - Practice and procedure - application to set aside default judgment - nature of review proceedings conducted by an Associate Justice - affidavit evidence rejected on review application - appeal from decision of an Associate Justice - additional evidence adduced on appeal - benefit received under mortgages - obligation to repay principal - discretion ground based on utility of an order setting aside default judgment.
Uniform Civil Procedure Rules 2005 LEGISLATION CITED : Contracts Review Act 1980 Supreme Court Act 1970
Modern Woodcraft Pty. Limited v. Nott (Young, J., unreported 7 March 1997) Comalco Aluminium Limited v. Ohtsu Tyre & Rubber Co. Australia Limited (1983) 8 ACLR 330 In the Will of Sheppard [1972] 2 NSWLR 714 Westpac Banking Corporation v. Abemond Pty. Limited (Santow, J., unreported 3 November 1994) Adams. Kennick Trading (International) Limited (1986) 4 NSWLR 503 Fleet v. Royal Society for Prevention of Cruelty to Animals (NSW) [2005] NSWSC 926 CASES CITED : Warren v. Coombs (1979) 142 CLR 531 Do Carmo v. Ford Excavations Pty. Limited [1981] 1 NSWLR 409 Australian Freyssinet Pty. Limited Marlan International Pty. Limited [2002] NSWSC 892 Martin v. Abbott Australasia Pty. Limited (1981) 2 NSWLR 430 Perpetual Trustee Co. Limited v. Khoshaba [2006] NSWCA 41 Elkotairi v. Permanent Trustee Co. Limited (2002) 11 BPR 20,841 St. George Bank v. Trimarchi [2004] NSWCA 120 Stutt v. Smith (1888) 10 ALR 159
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