Ferella v Key Nominees Pty Limited [2015] NSWCA 401

Ferella v Key Nominees Pty Limited [2015] NSWCA 401

Leave to appeal was refused because the applicants had not shown arguable error in the primary judge's conclusion that the 2015 summons fell within Young AJ's order. The 2015 summons was between the same parties, sought recovery of the same amount from the proceeds of the same mortgagee sale, and the statutory reliance on s 58(3) formed part of the same regime under which the mortgagee was obliged to account for the proceeds of sale rather than a separate cause outside the earlier order. There was also no explanation for why the applicants sought leave to appeal instead of seeking leave to commence proceedings as contemplated by Young AJ's order.

Jurisdiction
Australia
Judgment Date
09 December 2015
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Summary Dismissal of Proceedings Commenced by Summons on 1 May 2015
Outcome
The summons seeking leave to appeal filed 28 September 2015 was dismissed with costs.
Legal Topics
['summary Dismissal' 'leave to Appeal' 'order Preventing Re Litigation Without Leave' 'mortgagee Sale' 'real Property Act 1900 (nsw), S 58']
['practice and Procedure' 'property Law' 'mortgages'] ['summary Dismissal' 'leave to Appeal' 'order Preventing Re Litigation Without Leave' 'mortgagee Sale' 'real Property Act 1900 (nsw), S 58']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Summary Dismissal of Proceedings Commenced by Summons on 1 May 2015

Legal Issues

  1. 1 ['Whether the 2015 proceedings were commenced contrary to an order that no fresh proceedings be commenced on the same cause of action without leave of the Court.' "Whether the 2015 summons was outside the scope of Young AJ's order because it relied on s 58(3) of the Real Property Act 1900 (NSW)." 'Whether the primary judge erred in treating the statutory and general law obligations of a mortgagee as part of the same cause of action or in referring to matters as well as causes of action.']

Ratio Decidendi

Leave to appeal was refused because the applicants had not shown arguable error in the primary judge's conclusion that the 2015 summons fell within Young AJ's order. The 2015 summons was between the same parties, sought recovery of the same amount from the proceeds of the same mortgagee sale, and the statutory reliance on s 58(3) formed part of the same regime under which the mortgagee was obliged to account for the proceeds of sale rather than a separate cause outside the earlier order. There was also no explanation for why the applicants sought leave to appeal instead of seeking leave to commence proceedings as contemplated by Young AJ's order.

Court Disposition

The summons seeking leave to appeal filed 28 September 2015 was dismissed with costs.

Orders

  • ['The summons seeking leave to appeal filed 28 September 2015 be dismissed with costs.']