Khalid v Perpetual Limited [2012] NSWCA 153

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Khalid v Perpetual Limited [2012] NSWCA 153 Hearing dates: 3 May 2012 Decision date: 29 May 2012 Before: Beazley JA at [1]; Whealy JA at [61]; Tobias AJA at [62] Decision: 1. Grant leave to appeal; 2. Appeal dismissed; 3. The appellant to pay the respondent's costs of the appeal. [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: MORTGAGES - Contract for sale of land - Purchase price payable by instalments - Property subject to mortgage - Mortgagor defaulted on home loan - Mortgagee issued default notice to mortgagor under Real Property Act 1900, s 57(2)(b) - Default judgment entered - Whether overstatement of amount due - Alleged invalidity of s 57(2)(b) notice - Section 57(2)(b) notice valid - Clause in mortgage dispensing with notice requirements - Clause in mortgage effective to dispense with notice requirements under the Act - Real Property Act, s 58A(1) - Appeal dismissed.

DEFAULT JUDGMENT - Third party claims sufficient interest to set aside - No basis to set aside default judgment. Legislation Cited: Real Property Act 1900 Cases Cited: Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; 153 CLR 491 Chang v Registrar of Titles (Vic) [1976] HCA 1; 137 CLR 177 Farrow Mortgage Services Pty Limited v Ragata Developments Pty Limited (1993) 32 NSWLR 333 House v R [1936] HCA 40; 55 CLR 499 KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] HCA 63; 155 CLR 288 Notaras v Sly & Weigall [2005] NSWCA 275; 12 BPR 23,765 Topfelt Pty Limited v State Bank of New South Wales Limited (1993) 6 BPR 13, 209 Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) 6 BPR 13, 527 Category: Principal judgment Parties: Khalid Ali Khalid (Appellant) Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) (First Respondent) Marwa Dilati (Second Respondent) Representation: Counsel: M W Young SC (Appellant) N Bearup (First Respondent) Solicitors: Pope & Spinks (Appellant) Gadens Lawyers (First Respondent) File Number(s): 2009/296958 Publication restriction: No Decision under appeal Citation: Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) v Marwa Dilati and Khalid Ali Khalid [2011] NSWSC 1259 Date of Decision: 2011-10-27 00:00:00 Before: James J File Number(s): 2009/296958