Perpetual Trustee Company Ltd v Nomak Holdings Pty Ltd [2014] NSWSC 1760

Perpetual Trustee Company Ltd v Nomak Holdings Pty Ltd [2014] NSWSC 1760

The consent judgment was not entered against good faith because there was no evidentiary basis to impeach Perpetual's or its lawyers' conduct leading up to the entry of judgment. Ms Batiste's complaints concerned later events about the time allowed to sell and the mortgagee sale, the alleged agreement was imprecise, at least four months was not shown to be unreasonable, the asserted $650,000 offer was not a firm offer capable of acceptance, the more than three-year delay was not sufficiently explained, and Ms Batiste acknowledged indebtedness to Perpetual. In those circumstances, sufficient cause was not shown to set aside the consent judgment under r 36.15.

Jurisdiction
Australia
Judgment Date
19 December 2014
Procedural Posture
Procedure Civil Application to Set Aside Consent Judgment Under Uniform Civil Procedure Rules 2005, R 36.15 / Final Hearing of Ms Batiste's Notice of Motion of 16 July 2013 to Set Aside Consent Judgment Entered on 1 February 2010
Outcome
Notice of Motion dismissed; Ms Batiste ordered to pay Perpetual Trustee Company Ltd's costs.
Legal Topics
['set Aside Judgment or Order' 'consent Judgment' 'irregularly, Illegally or Against Good Faith' 'delay and Finality of Litigation' 'mortgagee Power of Sale' 'costs Follow the Event']
['civil Procedure' 'costs' 'mortgage Enforcement'] ['set Aside Judgment or Order' 'consent Judgment' 'irregularly, Illegally or Against Good Faith' 'delay and Finality of Litigation' 'mortgagee Power of Sale' 'costs Follow the Event']

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Procedural Posture

Procedure Civil Application to Set Aside Consent Judgment Under Uniform Civil Procedure Rules 2005, R 36.15 / Final Hearing of Ms Batiste's Notice of Motion of 16 July 2013 to Set Aside Consent Judgment Entered on 1 February 2010

Legal Issues

  1. 1 ['Whether the consent judgment entered on 1 February 2010 was made irregularly, illegally or against good faith within Uniform Civil Procedure Rules 2005, r 36.15.' 'Whether Ms Batiste showed sufficient cause to set aside the consent judgment after a delay of more than three years.' "Whether Perpetual's alleged conduct regarding time to sell the property or the sale price provided a basis to set aside the judgment." 'Whether the Notice to Produce complied with Uniform Civil Procedure Rules 2005, r 34.1(1).']

Ratio Decidendi

The consent judgment was not entered against good faith because there was no evidentiary basis to impeach Perpetual's or its lawyers' conduct leading up to the entry of judgment. Ms Batiste's complaints concerned later events about the time allowed to sell and the mortgagee sale, the alleged agreement was imprecise, at least four months was not shown to be unreasonable, the asserted $650,000 offer was not a firm offer capable of acceptance, the more than three-year delay was not sufficiently explained, and Ms Batiste acknowledged indebtedness to Perpetual. In those circumstances, sufficient cause was not shown to set aside the consent judgment under r 36.15.

Court Disposition

Notice of Motion dismissed; Ms Batiste ordered to pay Perpetual Trustee Company Ltd's costs.

Orders

  • ['Notice of Motion of 16 July 2013 dismissed.' 'Order Ms Batiste to pay the costs of Perpetual Trustee Company Ltd.']