Permanent Custodians Ltd v El Ali [2008] NSWSC 1264

New South Wales Supreme Court

CITATION : Permanent Custodians Ltd v El Ali [2008] NSWSC 1264

HEARING DATE(S) : 23 July 2008

JUDGMENT DATE : 28 November 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) Order 2 of the judgment made and entered in these proceedings on 26 October 2006 be set aside as against the second defendant;

DECISION : (ii) The second defendant be granted leave to file a defence in the form annexed to the affidavit in support of the notice of motion filed 17 October 2007;

(iii) The parties have liberty to apply for any further or consequential order, including an order for costs, within 7 days of the date hereof by serving a written submission in support thereof and providing same to my Associate. Any other party has liberty within a further 7 days to respond thereto.

CATCHWORDS : MORTGAGE – indefeasibility of title – forgery – mortgagee sale not satisfying debt – liability of defrauded mortgagor - PRACTICE AND PROCEDURE – res judicata – issue estoppel – capacity to challenge mortgage other than as interest in land without setting aside judgment for possession

LEGISLATION CITED : Civil Procedure Act 2005 Real Property Act 1900

CATEGORY : Procedural and other rulings

Adams v Kennick Trading (International) Limited & Ors (1986) 4 NSWLR 503 Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376 English Scottish & Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302 CASES CITED : Frazer v Walker [1967] 1 AC 569 Garofano v Reliance Finance (1992) 5 BPR 11,941; [1992] NSW Conv R 59,659 (55-640) Garrard (t/as Arthur Anderson & Co) & Ors v Email Furniture Pty Ltd (1993) 32 NSWLR 662 Provident Capital Limited v Printy [2008] NSWCA 131