Perpetual Trustees Victoria Ltd v English (No 2) [2010] NSWCA 327

New South Wales Court of Appeal

CITATION: Perpetual Trustees Victoria Ltd v English (No 2) [2010] NSWCA 327

HEARING DATE(S): On the papers

JUDGMENT DATE: 30 November 2010

JUDGMENT OF: Allsop P at 1

"1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as 36 Brisbane Road, Castle Hill and being the whole of the land comprised in folio identifier 4/13841 (Property) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder. 2. An order that, if contracts for the sale of the Property by the second and third respondent are not exchanged by 15 June 2010, on terms that are satisfactory to the Appellant, then effective from 16 June 2010: (a) trustees for sale be appointed in respect of the Property under section 66G of the Conveyancing Act 1919 (NSW) and that the Property be vested in such Trustees, to be held by such trustees upon a statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919 (NSW); DECISION: (b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the trustees referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of trustees by the Court. (c) An order that the trustees' fees, expenses and legal costs be paid out of the proceeds of the sale. (d) An order that the trustees pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares. 3. Liberty for the parties or any Trustee appointed, to restore the proceedings on 3 days notice to seek further orders." [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]