JE & EJ Investments P/L v Masselos Adcom Holdings P/L v Masselos & Anor [2001] NSWSC 844

JE & EJ Investments P/L v Masselos Adcom Holdings P/L v Masselos & Anor [2001] NSWSC 844

In proceedings 11261/2001, although the s 57(2)(b) notice was validly served and referred to a three month period, it only stated that the plaintiff proposed to exercise a power of sale and did not notify the defendant of an intention to take proceedings as required by s 92 of the Conveyancing Act 1919 (NSW). The notice was therefore insufficient and the claim for summary judgment failed. In proceedings 13002/2000, the s 57(2)(b) notice was served but stipulated one month rather than three months; nevertheless, after repayment of principal and consent orders, the plaintiff was entitled to costs of the proceedings except that each party should bear its own costs of the motion.

Jurisdiction
Australia
Judgment Date
27 September 2001
Procedural Posture
Common Law Proceedings Concerning Mortgages and Notices Under the Conveyancing Act 1919 (nsw) and Real Property Act 1900 (nsw) / Notices of Motion, Including an Application for Summary Judgment and a Costs Dispute
Outcome
The plaintiff's notice of motion in proceedings 11261/2001 was dismissed; costs were ordered for the defendant. In proceedings 13002/2000, the defendant was ordered to pay the plaintiff's costs of the proceedings except that both parties were to pay their own costs of the motion.
Legal Topics
['summary Judgment' 'mortgagee Remedies' 'notice Under S 92 of the Conveyancing Act 1919 (nsw)' 'notice Under S 57(2)(b) of the Real Property Act 1900 (nsw)' 'costs']
['property Law' 'mortgages' 'civil Procedure'] ['summary Judgment' 'mortgagee Remedies' 'notice Under S 92 of the Conveyancing Act 1919 (nsw)' 'notice Under S 57(2)(b) of the Real Property Act 1900 (nsw)' 'costs']

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Procedural Posture

Common Law Proceedings Concerning Mortgages and Notices Under the Conveyancing Act 1919 (nsw) and Real Property Act 1900 (nsw) / Notices of Motion, Including an Application for Summary Judgment and a Costs Dispute

Legal Issues

  1. 1 ['Whether the plaintiff in proceedings 11261/2001 was entitled to summary judgment for possession, damages, interest and costs.' 'Whether a notice issued under s 57(2)(b) of the Real Property Act 1900 (NSW) was sufficient to satisfy s 92 of the Conveyancing Act 1919 (NSW).' 'Whether the s 57(2)(b) notices were served.' 'What costs orders should be made in proceedings 13002/2000.']

Ratio Decidendi

In proceedings 11261/2001, although the s 57(2)(b) notice was validly served and referred to a three month period, it only stated that the plaintiff proposed to exercise a power of sale and did not notify the defendant of an intention to take proceedings as required by s 92 of the Conveyancing Act 1919 (NSW). The notice was therefore insufficient and the claim for summary judgment failed. In proceedings 13002/2000, the s 57(2)(b) notice was served but stipulated one month rather than three months; nevertheless, after repayment of principal and consent orders, the plaintiff was entitled to costs of the proceedings except that each party should bear its own costs of the motion.

Court Disposition

The plaintiff's notice of motion in proceedings 11261/2001 was dismissed; costs were ordered for the defendant. In proceedings 13002/2000, the defendant was ordered to pay the plaintiff's costs of the proceedings except that both parties were to pay their own costs of the motion.

Orders

  • ["The plaintiff's notice of motion in proceedings 11261/2001 is dismissed." "The plaintiff is to pay the defendant's costs." "In proceedings 13002/2000, the defendant is to pay the plaintiff's costs of the proceedings except both parties are to pay their own costs of the motion."]