CBA V Nabi [2010] NSWSC 1425

CBA V Nabi [2010] NSWSC 1425

Because neither defendant filed a defence or made payments, the Bank was entitled to default judgment against the second defendant for the proved amount. The evidence established that the first defendant held the legal interest in the land for the second defendant, making a vesting order expedient under Trustee Act 1925, s 71. Secondary evidence established the lost mortgage and its power of attorney, permitting the Bank to seek the vesting order as attorney for the second defendant. The Bank's unregistered mortgage operated as an equitable charge enforceable by judicial sale, and the second defendant's default and receipt of rent justified appointment of receivers pending sale.

Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Equity Division Proceeding Concerning Default Judgment, Vesting Order, Judicial Sale and Appointment of Receivers / Application for Judgment in Default
Outcome
Judgment entered against the second defendant; vesting order, judicial sale order and appointment of receivers made; defendants ordered to pay the plaintiff's costs.
Legal Topics
['default Judgment' 'vesting Orders' 'bare Trustee' 'equitable Mortgage' 'judicial Sale' 'appointment of Receivers' 'lost Mortgage Documents' 'secondary Evidence' 'costs']
['civil Procedure' 'equity' 'trusts' 'real Property' 'banking and Finance'] ['default Judgment' 'vesting Orders' 'bare Trustee' 'equitable Mortgage' 'judicial Sale' 'appointment of Receivers' 'lost Mortgage Documents' 'secondary Evidence' 'costs']

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Procedural Posture

Equity Division Proceeding Concerning Default Judgment, Vesting Order, Judicial Sale and Appointment of Receivers / Application for Judgment in Default

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to default judgment against the second defendant for amounts owing under the loan agreement and mortgage.' 'Whether the legal interest of the first defendant in the land should be vested in the second defendant under Trustee Act 1925, s 71.' "Whether secondary evidence of the lost mortgage established the plaintiff's entitlement to rely on the power of attorney in that mortgage." 'Whether the plaintiff, as equitable mortgagee, was entitled to an order for judicial sale of the land.' 'Whether receivers should be appointed to collect rents and profits from the land pending sale.' 'Whether costs should be ordered against the defendants.']

Ratio Decidendi

Because neither defendant filed a defence or made payments, the Bank was entitled to default judgment against the second defendant for the proved amount. The evidence established that the first defendant held the legal interest in the land for the second defendant, making a vesting order expedient under Trustee Act 1925, s 71. Secondary evidence established the lost mortgage and its power of attorney, permitting the Bank to seek the vesting order as attorney for the second defendant. The Bank's unregistered mortgage operated as an equitable charge enforceable by judicial sale, and the second defendant's default and receipt of rent justified appointment of receivers pending sale.

Court Disposition

Judgment entered against the second defendant; vesting order, judicial sale order and appointment of receivers made; defendants ordered to pay the plaintiff's costs.

Orders

  • ['Judgment be entered against the second defendant in the amount of $542,520.11.' 'Pursuant to s 71 of the Trustee Act 1925 the legal interest of the first defendant in the land contained in certificate of title folio identifier 126/261660 and situated at 4 Wallaby Close, Bossley Park in the State of New South Wales...