Mudge v Business Finance Pty Ltd (Receiver and Manager Appointed) [2021] NSWCA 250

Mudge v Business Finance Pty Ltd (Receiver and Manager Appointed) [2021] NSWCA 250

Although the filing delay was not inordinate and caused no prejudice, leave to appeal was refused because Mr Mudge failed to identify any error in the primary judge's findings or discretionary orders, failed to show a serious issue to be tried as to a caveatable interest, and failed to demonstrate any reasonably clear injustice; the balance of convenience favoured withdrawal of the caveats, the service and procedural fairness complaints lacked substance, no error was shown in the cross-claim, Registrar General or costs orders, and the completed sale meant there was no utility in the proposed appeal against the 21 May orders.

Jurisdiction
Australia
Judgment Date
20 October 2021
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Extension of Time, Leave to Appeal, and Notice of Motion
Outcome
Time to file the summons seeking leave to appeal was extended, but the summons seeking leave to appeal and the applicant's notice of motion were dismissed with costs.
Legal Topics
['leave to Appeal' 'removal of Caveats' 'mortgagee Power of Sale' 'service of Default Notices and Demands' 'balance of Convenience' 'extension of Time' 'interlocutory Orders' 'costs Orders']
['appeals' 'real Property' 'mortgages' 'civil Procedure' 'costs'] ['leave to Appeal' 'removal of Caveats' 'mortgagee Power of Sale' 'service of Default Notices and Demands' 'balance of Convenience' 'extension of Time' 'interlocutory Orders' 'costs Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Extension of Time, Leave to Appeal, and Notice of Motion

Legal Issues

  1. 1 ['Whether time should be extended for filing the summons seeking leave to appeal.' 'Whether leave to appeal should be granted from orders requiring withdrawal of caveats and restraining further caveats.' 'Whether the applicant showed a serious issue to be tried as to a caveatable interest in the properties.' 'Whether the primary judge erred in relation to service of demands, procedural fairness, reasons, refusal of leave to file a cross-claim, the Registrar General order, or costs.' 'Whether the completed sale of the properties deprived the proposed appeal of utility.']

Ratio Decidendi

Although the filing delay was not inordinate and caused no prejudice, leave to appeal was refused because Mr Mudge failed to identify any error in the primary judge's findings or discretionary orders, failed to show a serious issue to be tried as to a caveatable interest, and failed to demonstrate any reasonably clear injustice; the balance of convenience favoured withdrawal of the caveats, the service and procedural fairness complaints lacked substance, no error was shown in the cross-claim, Registrar General or costs orders, and the completed sale meant there was no utility in the proposed appeal against the 21 May orders.

Court Disposition

Time to file the summons seeking leave to appeal was extended, but the summons seeking leave to appeal and the applicant's notice of motion were dismissed with costs.

Orders

  • ['Extend the time for filing of the summons seeking leave to appeal to 6 August 2021.' 'Summons seeking leave to appeal be dismissed.' "Applicant to pay the respondents' costs in this Court." 'Notice of motion filed by the applicant on 6 August 2021 be dismissed with costs.']