BENECKE v THE NATIONAL AUSTRALIA BANK LIMITED [1993] NSWCA 23
The giving or otherwise of a notice under s 57 of the Real Property Act 1900 was irrelevant because the proceedings in question sought possession per settlement terms and not the exercise of statutory power of sale; therefore, no basis existed to discharge the orders.
- Parties
- Applicant: Benecke; Opponent: The National Australia Bank Limited
- Jurisdiction
- Australia
- Judgment Date
- 03 May 1993
- Procedural Posture
- Notice of Motion / Application / Application for Stay and Motion to Discharge Orders Following Appeal Judgment
- Outcome
- Application dismissed
- Legal Topics
- Stay of Proceedings, Application to Discharge Court's Orders, Mortgage Enforcement, Real Property Act 1900 (nsw)
Case Brief
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Parties
Benecke
Applicant
The National Australia Bank Limited
Opponent
Procedural Posture
Notice of Motion / Application / Application for Stay and Motion to Discharge Orders Following Appeal Judgment
Legal Issues
- 1 Whether fresh evidence regarding service of notice under s 57(2)(b) of the Real Property Act 1900 warrants discharge of prior orders in possession proceedings
- 2 Relevance of notice under s 57 to concluded proceedings settled by agreement
Ratio Decidendi
The giving or otherwise of a notice under s 57 of the Real Property Act 1900 was irrelevant because the proceedings in question sought possession per settlement terms and not the exercise of statutory power of sale; therefore, no basis existed to discharge the orders.
Court Disposition
Application dismissed
Orders
- Notice of motion dismissed
Full Case Text
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