Perpetual Limited v Barghachoun [2010] NSWSC 108

New South Wales Supreme Court

CITATION : Perpetual Limited v Barghachoun [2010] NSWSC 108

HEARING DATE(S) : 2 October 2009, 8 October 2009, 14 October 2009, 16 October 2009, 22 October 2009, 28 October 2009

JUDGMENT DATE : 26 February 2010

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) The first defendant's amended notice of motion filed on 18 September 2009 and/or 22 October 2009, except as hereinafter specified, be dismissed;

(ii) The first defendant be granted leave to file an amended defence and cross-claim, as advised, pleading his case in relation to the monetary debt, within 14 days of the date of this judgment; DECISION : (iii) Execution of the writ of possession issued in relation to [address provided in original hard copy but removed for publication], be stayed until 30 April 2010;

(iv) The first defendant pay the plaintiff's costs of and incidental to his and its notices of motion, as agreed or assessed.

CATCHWORDS : REAL PROPERTY – Torrens System – indefeasibility of title – default judgment – elderly mortgagor who speaks no English – alleged involvement of agent of mortgagee in alleged unfair conduct – not fraud of the kind to defeat indefeasibility – default judgment not set aside

Civil Procedure Act 2005 LEGISLATION CITED : Real Property Act 1900 Supreme Court Act 1970

CATEGORY : Procedural and other rulings

Assets Co Ltd v Mere Roihi [1905] AC 176 Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376 Frazer v Walker [1967] 1 AC 569 CASES CITED : Garofano v Reliance Finance (1992) 5 BPR 11,941; [1992] NSWConvR 59,659 Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd [2009] NSWSC 1265 Schultz v Corwill Properties (1969) 2 NSWR 576 Tomko v Palasty (No 2) [2007] NSWCA 369