Bank of Sydney Ltd v Gallagher [2018] NSWSC 596

Bank of Sydney Ltd v Gallagher [2018] NSWSC 596

The defendants' defence did not disclose any defence to the plaintiff's claim arising from default under the loan agreement and mortgage. Although the plaintiff was entitled to judgment, entry of judgment was deferred because the defendants had satisfactorily proved entry into a contract to sell the property at a...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 May 2018
Procedural Posture
Mortgage Possession Proceedings / Procedural Ruling on Defence and Leave to Obtain Default Judgment
Outcome
Defence struck out; plaintiff granted leave to obtain default judgment, but not before 5 July 2018; defendants prohibited from filing amended defences; liberty to apply.
Legal Topics
['possession of Land' 'default Under Loan Agreement and Mortgage' 'strike Out of Defence' 'default Judgment' 'stay of Entry of Judgment Pending Completion of Sale']
['land Law' 'mortgages' 'civil Procedure'] ['possession of Land' 'default Under Loan Agreement and Mortgage' 'strike Out of Defence' 'default Judgment' 'stay of Entry of Judgment Pending Completion of Sale']

Source-derived case record

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Procedural Posture

Mortgage Possession Proceedings / Procedural Ruling on Defence and Leave to Obtain Default Judgment

Legal Issues

  1. 1 ["Whether the defendants' defence disclosed any defence to the plaintiff's mortgage claim." 'Whether the plaintiff should be permitted to obtain default judgment.' 'Whether entry of default judgment should be delayed because the defendants had entered into a contract to sell the mortgaged property.']

Ratio Decidendi

The defendants' defence did not disclose any defence to the plaintiff's claim arising from default under the loan agreement and mortgage. Although the plaintiff was entitled to judgment, entry of judgment was deferred because the defendants had satisfactorily proved entry into a contract to sell the property at a price sufficient to pay the plaintiff's debt in full, with completion expected on 5 July 2018.

Court Disposition

Defence struck out; plaintiff granted leave to obtain default judgment, but not before 5 July 2018; defendants prohibited from filing amended defences; liberty to apply.

Orders

  • ['The defence filed by the defendants on 25 January 2018 is struck out.' 'The plaintiff is given leave to obtain default judgment but not prior to 5 July 2018.' 'The Defendants are not permitted to file amended defences.' 'Liberty to apply.']