Perpetual Trustees Victoria Ltd v English (No 3) [2011] NSWCA 74

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Perpetual Trustees Victoria Ltd v English (No 3) [2011] NSWCA 74 Hearing dates: On the papers Decision date: 05 April 2011 Before: Allsop P at 1, Campbell JA at 1, Sackville AJA at 1 Decision: A. In the appeal: 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); (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 (Ms English) in equal shares and that the payment to Ms English not be made for a period of 28 days after receipt of the funds and the despatch to Mr English and any lawyer known by the trustees to be acting for him of the trustees' intention to distribute the funds to Ms English. 3. Liberty for the parties or any trustee appointed, to restore the proceedings on 3 days notice to seek further orders. 4. Grant leave nunc pro tunc to the appellant to bring and continue these proceedings against the First Respondent. B. Pursuant to the amended notice of motion dated 13 December 2010: 1. The Court appoints Dennis Patrick Grogan and Lewis James Webb as trustees for sale of the property under section 66G of the Conveyancing Act 1919 (NSW) ("the trustees"). 2. The trustees have possession of the property the subject of the proceedings. 3. The trustees have leave to issue a writ of possession in respect of the property. 4. The costs of this notice of motion be costs in the cause. [Note: 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.] Catchwords: PROCEDURE - Judgments and orders - powers of Judge of Appeal to make any order by consent - orders defective where party had not consented