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

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

In light of the recent valuation supporting the $580,000 sale price, Perpetual was acting in accordance with its duties as mortgagee in possession by not continuing to oppose the relief, and the caveator's position was protected by payment of the balance of the sale proceeds into Court; therefore the orders directing sale to Claudia Skaff, restraining the auction, requiring withdrawal of the caveat, and paying net proceeds into Court should be made.

Jurisdiction
Australia
Judgment Date
29 May 2014
Procedural Posture
Interlocutory Applications / Application for Orders Restraining Proposed Auction by Mortgagee in Possession and Directing Sale of the Property
Outcome
Orders made.
Legal Topics
['possession of Land' 'mortgagee in Possession' 'sale of Land' 'caveatable Interest' 'payment of Proceeds of Sale Into Court']
['real Property' 'mortgage Law'] ['possession of Land' 'mortgagee in Possession' 'sale of Land' 'caveatable Interest' 'payment of Proceeds of Sale Into Court']

Case Brief

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Procedural Posture

Interlocutory Applications / Application for Orders Restraining Proposed Auction by Mortgagee in Possession and Directing Sale of the Property

Legal Issues

  1. 1 ['Whether Perpetual Limited should be restrained from auctioning the property at 18 Dennis Street, Greystanes.' 'Whether the property should instead be sold to Claudia Skaff for $580,000 pursuant to the proposed arrangement.' "Whether the caveator's claimed interest would be protected by payment of the net sale proceeds into Court."]

Ratio Decidendi

In light of the recent valuation supporting the $580,000 sale price, Perpetual was acting in accordance with its duties as mortgagee in possession by not continuing to oppose the relief, and the caveator's position was protected by payment of the balance of the sale proceeds into Court; therefore the orders directing sale to Claudia Skaff, restraining the auction, requiring withdrawal of the caveat, and paying net proceeds into Court should be made.

Court Disposition

Orders made.

Orders

  • ['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...