NSW Caselaw
New South Wales Supreme Court
CITATION : Perpetual Trustee Company Ltd v Mitchell [2010] NSWSC 825
HEARING DATE(S) : 28 July 2010
JUDGMENT DATE : 30 July 2010
JURISDICTION : POSSESSION LIST
JUDGMENT OF : Davies J
DECISION : (1) The Defendant's Notice of Motion dated 23 July 2010 is dismissed. (2) The Defendant is to pay the Plaintiff's costs of the Motion.
CATCHWORDS : CONTRACT - penalty - proceedings pursuant to a loan agreement and mortgage - proceedings compromised with acknowledgment of amount owing - Plaintiff agrees to accept a lesser sum if certain conditions met - if conditions not met acknowledged debt becomes payable - indulgence by creditor - default provision not a penalty.
LEGISLATION CITED : Civil Procedure Act 2005 Mental Health Act 2007
CATEGORY : Procedural and other rulings
AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 Cameron v UBS AG [2000] VSCA 222; [2000] 2 VR 108 CASES CITED : O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 Perpetual Trustee Co Ltd v Aspley Specialist Centre Pty Ltd [2010] QSC 232 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 Zenith Engineering Pty Ltd v Queensland Crane and Machinery Pty Ltd & Anor [2000] QCA 221
PARTIES : Perpetual Trustee Company Ltd (Plaintiff) Jennifer Victoria Mitchell (Defendant)
FILE NUMBER(S) : SC 2008/287575
COUNSEL : J Simpkins SC (Plaintiff) E Cohen (Defendant)
SOLICITORS : Gadens Lawyers (Plaintiff) Matthews Follbigg (Defendant)
- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST
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