Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049 Hearing dates: 25 March 2011 and on written submissions Decision date: 09 September 2011 Before: McCallum J Decision: Judgment for Perpetual against David El -Bayeh for $181,982.87 plus interest at the loan agreement rates from 1 September 2006 to 17 February 2010; David El-Bayeh to pay that amount within 28 days of its quantification as agreed or determined by the Court; Perpetual to pay half of David El-Bayeh's costs of that claim, such costs to be assessed on the ordinary basis; Perpetual's claim against CTC dismissed; Perpetual to pay CTC's costs of that claim, such costs to be assessed on the ordinary basis; Perpetual's claim against Mr Saadie dismissed with no order as to costs; Judgment for Perpetual against Youssef El-Bayeh in the amount of $298,017.13 plus interest from 11 October 2004 to the date of judgment pursuant to section 100 of the Civil Procedure Act 2005; Youssef El-Bayeh to pay Perpetual's costs of that claim (including the costs it has been ordered to pay to David El-Bayeh), Perpetual's costs against Youssef El-Bayeh to be assessed on an indemnity basis; Judgment for David El-Bayeh against Youssef El-Bayeh on the first cross-claim for $113,465.19; David El-Bayeh have leave to discontinue the second cross claim against CTC with no order as to costs; third cross claim brought by Youssef El-Bayeh against David El-Bayeh dismissed; Youssef El-Bayeh to pay David El-Bayeh's costs of the first and third cross claims, the costs on the first cross-claim to be assessed on an indemnity basis. Catchwords: MORTGAGES - forged mortgage - security for amount payable by way of restitution - whether mortgagee entitled to an order for possession based on failure to pay before order for restitution made