NSW Caselaw
New South Wales Supreme Court
CITATION : CBA V Nabi [2010] NSWSC 1425
HEARING DATE(S) : 9 November 2010
JUDGMENT DATE : 10 December 2010
JUDGMENT OF : Gzell J
DECISION : Judgment for an amount owing against second defendant. Vesting order, order for judicial sale and appointment of receivers made.
CATCHWORDS : PROCEDURE - Vesting Orders - bank lent moneys to second defendant to purchase property from her mother, the first defendant, loan secured by mortgage over land - before transfer registered, it together with mortgage and certificate of title lost - no defences filed nor payments made after second defendant fell into default - second defendant continued to receive rent - mortgage contained power of attorney to bank upon default - judgment by default - whether upon secondary evidence of lost document bank entitled to order vesting the property in the second defendant under the Trustee Act 1925, s 71(2)(o) - whether entitled to judicial sale of property - whether entitled to appointment of receivers
Uniform Civil Procedure Rules 2005 LEGISLATION CITED : Duties Act 1997 Trustee Act 1925
CASES CITED : Sayer v McHugh (1985) 1 NSWLR 440 King Investment Solutions v Hussain [2005] NSWSC 1076
TEXTS CITED : Jacobs Law of Trusts in Australia, (7th ed), LexisNexis Butterworths, Australia, 2006
Commonwelath Bank of Australia (Plaintiff) PARTIES : Rihab Al Nabi (First Defendant) Samara Samir (Second Defendant
FILE NUMBER(S) : SC 2009/290854
COUNSEL : N Manousaridis (Plaintiff) R Newton (First Defendant)
SOLICITORS : Commonwealth Bank of Australia (Plaintiff) David Legal (First Defendant)
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