Cusack v. Permanent Trustee Company Ltd. [2004] NSWCA 143

Cusack v. Permanent Trustee Company Ltd. [2004] NSWCA 143

Since the mortgaged property was already sold, there was no longer any practical purpose in granting leave to appeal against the refusal of a stay. The only potential remaining remedy lay in applying to set aside the default judgment in the Common Law Division.

Jurisdiction
Australia
Judgment Date
03 May 2004
Procedural Posture
Appeal / Application for Leave to Appeal
Outcome
Leave to appeal dismissed with costs.
Legal Topics
['appeals' 'refusal of Stay' 'default Judgment' 'remedy of Application in Division Where Order Made']
['practice and Procedure'] ['appeals' 'refusal of Stay' 'default Judgment' 'remedy of Application in Division Where Order Made']

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Procedural Posture

Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether stay of default judgment should have been granted' 'Whether any purpose remains in granting an adjournment or leave to appeal after sale of mortgaged property']

Ratio Decidendi

Since the mortgaged property was already sold, there was no longer any practical purpose in granting leave to appeal against the refusal of a stay. The only potential remaining remedy lay in applying to set aside the default judgment in the Common Law Division.

Court Disposition

Leave to appeal dismissed with costs.

Orders

  • ['Leave to appeal dismissed with costs.' 'Mr Cusack to have leave to reinstate the application for leave to appeal by notice of motion filed within 28 days from the date of judgment, if necessary.']