Vie De L’Eau Pty Ltd v Williams [2015] NSWSC 804

Vie De L’Eau Pty Ltd v Williams [2015] NSWSC 804

The consent judgment was not entered irregularly. The deed clearly required payment of $790,000 by 29 May 2015, provided for entry of consent judgment on default, and made time of the essence. The mortgagee's solicitor's reference to $760,000 was an obvious typing error, was promptly corrected, did not show that the mortgagee was not ready and willing to settle, and was not shown to have been relied on by the mortgagor to his detriment. The mortgagee was entitled to insist on strict compliance and to enter judgment after non-compliance.

Jurisdiction
Australia
Judgment Date
18 June 2015
Procedural Posture
Application to Set Aside a Consent Judgment in Proceedings Arising From the Possessions List / Motion Filed on 9 June 2015 Heard and Determined Ex Tempore
Outcome
Motion dismissed with costs.
Legal Topics
['consent Judgment' 'application to Set Aside Judgment Entered Irregularly' 'deed of Settlement' 'time of the Essence' 'readiness and Willingness to Settle' 'duty to Co Operate in Performance of Contract']
['civil Procedure' 'mortgages' 'settlement of Litigation'] ['consent Judgment' 'application to Set Aside Judgment Entered Irregularly' 'deed of Settlement' 'time of the Essence' 'readiness and Willingness to Settle' 'duty to Co Operate in Performance of Contract']

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Procedural Posture

Application to Set Aside a Consent Judgment in Proceedings Arising From the Possessions List / Motion Filed on 9 June 2015 Heard and Determined Ex Tempore

Legal Issues

  1. 1 ['Whether the consent judgment was entered irregularly for the purposes of rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the mortgagee entered judgment contrary to the Deed of Settlement.' "Whether an erroneous reference to $760,000 in the mortgagee's solicitor's letter showed that the mortgagee was not ready and willing to settle or breached a duty to co-operate." 'Whether the mortgagor relied on the erroneous figure to his detriment.']

Ratio Decidendi

The consent judgment was not entered irregularly. The deed clearly required payment of $790,000 by 29 May 2015, provided for entry of consent judgment on default, and made time of the essence. The mortgagee's solicitor's reference to $760,000 was an obvious typing error, was promptly corrected, did not show that the mortgagee was not ready and willing to settle, and was not shown to have been relied on by the mortgagor to his detriment. The mortgagee was entitled to insist on strict compliance and to enter judgment after non-compliance.

Court Disposition

Motion dismissed with costs.

Orders

  • ['Dismiss the motion filed on 9 June 2015 with costs.']