Permanent Custodians Ltd v El Ali [2008] NSWSC 1264

Permanent Custodians Ltd v El Ali [2008] NSWSC 1264

Ms Awad may challenge the money judgment in so far as it exceeds the amount obtained from the mortgagee sale without disturbing the writ of possession or the mortgagee sale; doctrines of res judicata and issue estoppel do not preclude this defence, because possession and debt enforcement under registered mortgage are distinct causes of action.

Jurisdiction
Australia
Judgment Date
28 November 2008
Procedural Posture
Civil / Post Default Judgment, Application to Set Aside Default Judgment
Outcome
Order 2 of the judgment (money judgment) set aside as against the second defendant; second defendant granted leave to file defence; liberty to apply for further/consequential orders
Legal Topics
['indefeasibility of Title' 'forgery' 'mortgagee Sale' 'res Judicata' 'issue Estoppel' 'setting Aside Default Judgment']
['property Law' 'civil Procedure'] ['indefeasibility of Title' 'forgery' 'mortgagee Sale' 'res Judicata' 'issue Estoppel' 'setting Aside Default Judgment']

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Procedural Posture

Civil / Post Default Judgment, Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether order for payment of monetary debt in default judgment can be set aside against second defendant without disturbing possession and mortgagee sale' 'Whether doctrines of res judicata or issue estoppel bar challenge to the money judgment where judgment for possession remains extant' 'Effect of indefeasibility of title on liability of defrauded mortgagor for debt exceeding proceeds of mortgagee sale']

Ratio Decidendi

Ms Awad may challenge the money judgment in so far as it exceeds the amount obtained from the mortgagee sale without disturbing the writ of possession or the mortgagee sale; doctrines of res judicata and issue estoppel do not preclude this defence, because possession and debt enforcement under registered mortgage are distinct causes of action.

Court Disposition

Order 2 of the judgment (money judgment) set aside as against the second defendant; second defendant granted leave to file defence; liberty to apply for further/consequential orders

Orders

  • ['Order 2 of the judgment made and entered in these proceedings on 26 October 2006 be set aside as against the second defendant' 'Second defendant granted leave to file a defence in the form annexed to the affidavit in support of the notice of motion filed 17 October 2007' 'The parties have liberty to apply for any...