Momentum Mortgages Limited (Receivers and Managers Appointed) v Mark Anthony Elmowy [2014] NSWSC 972

Momentum Mortgages Limited (Receivers and Managers Appointed) v Mark Anthony Elmowy [2014] NSWSC 972

Leave to amend the cross-claim is granted except for claims alleging breach of duty by a mortgagee in possession to sell the property at or for not less than its market value, and paragraphs 83–86 concerning unconscionable conduct are struck out but may be repleaded; costs of the amendment application to be paid by the applicants.

Jurisdiction
Australia
Judgment Date
24 July 2014
Procedural Posture
Application to Amend Cross Claim / Interlocutory
Outcome
Leave to amend cross-claim granted in part, sought leave to include certain claims refused, costs ordered against applicants.
Legal Topics
['amendment of Pleadings' 'cross Claims' 'limitation Periods' 'mortgagee Duties' 'unconscionable Conduct']
['civil Procedure'] ['amendment of Pleadings' 'cross Claims' 'limitation Periods' 'mortgagee Duties' 'unconscionable Conduct']

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Procedural Posture

Application to Amend Cross Claim / Interlocutory

Legal Issues

  1. 1 ['Whether leave should be granted to amend the cross-claim' 'Whether the proposed amendments plead causes of action barred by limitation periods' 'Whether amendments are based on already exchanged evidence' 'Whether the proposed cross-claim is deficient in form' 'Whether a claim for breach of duty by a mortgagee in possession to sell at market value can be included']

Ratio Decidendi

Leave to amend the cross-claim is granted except for claims alleging breach of duty by a mortgagee in possession to sell the property at or for not less than its market value, and paragraphs 83–86 concerning unconscionable conduct are struck out but may be repleaded; costs of the amendment application to be paid by the applicants.

Court Disposition

Leave to amend cross-claim granted in part, sought leave to include certain claims refused, costs ordered against applicants.

Orders

  • ['Grant leave to Mr Meehan and Ezcape Street Projects Pty Ltd to amend the cross-claim in the form attached to their submissions of 3 June 2014 (subject to qualifications).' 'Refuse leave to amend to include a claim alleging a breach of duty by a mortgagee in possession to sell at or for not less than market value.'...