Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd) v Dagher; Dagher v Berhero Pty Ltd [2014] NSWSC 694

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd) v Dagher; Dagher v Berhero Pty Ltd [2014] NSWSC 694 Hearing dates: 29 May 2014 Decision date: 29 May 2014 Jurisdiction: Common Law Before: Davies J Decision: Orders made in the following terms: 1. Perpetual Limited as Mortgagee in Possession of Lot 12 in Deposited Plan 516014, known as 18 Dennis Street, Greystanes NSW (the Property) enter into a contract for sale of the Property to Claudia Skaff for the sum of $580,000.00 on the basis that completion of that sale takes place within forty two (42) days of the date of the said contract. 2. Perpetual Limited be restrained from otherwise selling the Property including in particular the sale of the Property at auction on 31 May 2014. 3. The First Defendant provide a Withdrawal of Caveat No. AH23673 to the First Plaintiff on settlement of the sale of the Property pursuant to contract for sale referred to in (1) above. 4. The net proceeds of the sale of the Property following payment of all monies owing to Perpetual Limited as First Mortgagee, the selling agent and the solicitors for Perpetual Limited on the sale of the Property, be paid into Court pending determination of Case No. 2013/188319 between the Plaintiffs herein and the Defendants herein. Catchwords: REAL PROPERTY - possession of land - proposed sale by mortgagee in possession - caveator claiming interest in the land - desire by mortgagor to sell to purchaser in advance of auction - application to restrain auction by mortgagee - mortgagees duties regarding payment of proceeds of sale Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Residential Housing Corporation v Esber [2011] NSWCA 25; (2011) 80 NSWLR 69 Category: Interlocutory applications Parties: Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd) Marcel Dagher Berhero Pty Ltd Representation: Counsel: J Watkins (Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd)) B Nolan (Marcel Dagher) V Wang (Berhero Pty Ltd) Solicitors: DibbsBarker (Perpetual Ltd (formerly known as Perpetual Trustees Australia Ltd)) Mahony Law (Marcel Dagher) Dettman Longworth Lawyers (Berhero Pty Ltd) File Number(s): 2011/355669 & 2013/188319