Bradley Hancock v Impresario Enterprises Pty Ltd (No 4) [2013] NSWSC 558

Bradley Hancock v Impresario Enterprises Pty Ltd (No 4) [2013] NSWSC 558

The plaintiff showed no basis to set aside the orders made on 12 April 2013 because the bank's registered first mortgage was not displaced by the plaintiff's asserted interest, earlier consent orders and terms of settlement recognised that the bank was to be paid its debt from the sale proceeds, and the plaintiff was protected by the bank's undertaking to pay any surplus into Court and by the withdrawal of caveat being held until settlement.

Jurisdiction
Australia
Judgment Date
22 April 2013
Procedural Posture
Notice of Motion to Set Aside Orders Made Ex Parte Following Plaintiff's Non Appearance / Application Heard on 22 April 2013 to Set Aside Orders Made on 12 April 2013
Outcome
Application to set aside orders made on 12 April 2013 dismissed.
Legal Topics
['setting Aside Ex Parte Orders' 'non Appearance' 'withdrawal of Caveat' 'registered First Mortgage' 'mortgagee Power of Sale' 'sale Proceeds']
['civil Procedure' 'property Law' 'banking and Finance'] ['setting Aside Ex Parte Orders' 'non Appearance' 'withdrawal of Caveat' 'registered First Mortgage' 'mortgagee Power of Sale' 'sale Proceeds']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Orders Made Ex Parte Following Plaintiff's Non Appearance / Application Heard on 22 April 2013 to Set Aside Orders Made on 12 April 2013

Legal Issues

  1. 1 ['Whether the orders made on 12 April 2013 requiring the plaintiff to provide a withdrawal of caveat should be set aside.' "Whether the plaintiff had a sufficient basis to resist providing the withdrawal of caveat or to delay settlement of the bank's sale of the property." "Whether the plaintiff's asserted interest in the property had priority over the bank's registered first mortgage."]

Ratio Decidendi

The plaintiff showed no basis to set aside the orders made on 12 April 2013 because the bank's registered first mortgage was not displaced by the plaintiff's asserted interest, earlier consent orders and terms of settlement recognised that the bank was to be paid its debt from the sale proceeds, and the plaintiff was protected by the bank's undertaking to pay any surplus into Court and by the withdrawal of caveat being held until settlement.

Court Disposition

Application to set aside orders made on 12 April 2013 dismissed.

Orders

  • ['The application to set aside the orders made on 12 April 2013 is dismissed.']