NSW Caselaw
Reported Decision : 72 NSWLR 148
New South Wales Supreme Court
CITATION : Perpetual Trustee Company Limited and Anor v Agusta Pty Limited [2008] NSWSC 646
HEARING DATE(S) : 17 June 2008
JUDGMENT DATE : 25 June 2008
JUDGMENT OF : Johnson J at 1
Upon the Defendant giving through counsel the usual undertaking as to damages, the Court orders: (a) that the operation of the notice dated 4 October 2007 and issued by the First Plaintiff to the Australian Steel Company (Operations) Pty Limited pursuant to s.63 of the Real Property Act 1900 be suspended until further order of the Court; (b) that within 21 days, the Australian Steel Company (Operations) Pty Limited is to pay two amounts, as follows: DECISION : (i) to the First Plaintiff, an amount of $50,000.00, (ii) to the Defendant, the balance of monies withheld by it as a result of the issue of the notice. The First and Second Plaintiffs are to pay the Defendant's costs of the Notice of Motion. No order as to costs made against the Third Respondent.
CATCHWORDS : MORTGAGES - mortgagee serves notice under s.63 Real Property Act 1900 on tenant of mortgaged property - denial of default by mortgagor - application by mortgagor to suspend operation of notice on terms - "special circumstances" - serious questions to be tried - balance of convenience
LEGISLATION CITED : Real Property Act 1900 Supreme Court Act 1970
CATEGORY : Principal judgment
United Starr-Bowkett Co-Operative Building Society (No. 11) Limited v Clyne (1967) 68 SR(NSW) 331 Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 Codelfa Construction Pty Limited v State Rail Authority (NSW) (1982) 149 CLR 337 John Fairfax Publications Pty Limited v Birt [2006] NSWSC 995 Starceavich v Swart & Associates Pty Limited [2006] NSWSC 960 R & D Holdings Pty Limited v Deputy Commissioner of Taxation [2006] FCA 981 CASES CITED : Commissioner of Taxation v R & D Holdings Pty Limited (2007) 240 ALR 653 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Moffitt (1990) 20 NSWLR 114 R v Simpson (2001) 53 NSWLR 704 Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 Capgemini US v Case [2004] NSWSC 674
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