Khalid v Perpetual Limited [2012] NSWCA 153

Khalid v Perpetual Limited [2012] NSWCA 153

Leave to appeal was granted, but the appeal was dismissed because the s 57(2)(b) default notice was valid: Mrs Dilati received account statements, knew or had the means of knowing the redraws and resulting balances, continued making instalment payments calculated on those balances, did not dispute the notice, and entered into a repayment agreement accepting liability. In any event, cl 8.2 of the mortgage memorandum, properly construed, dispensed under s 58A(1) with notice for the non-monetary default constituted by the sale of the land to Mr Khalid without Perpetual's prior written consent, so setting aside the default judgment would be futile.

Jurisdiction
Australia
Judgment Date
29 May 2012
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Default Judgment for Possession of Mortgaged Land / Court of Appeal of the Supreme Court of New South Wales From Perpetual Limited (formerly Known as Perpetual Trustees Australia Limited) V Marwa Dilati and Khalid Ali Khalid [2011] NSWSC 1259
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['contract for Sale of Land Payable by Instalments' 'mortgage Default Notice' 'power of Sale' 'default Judgment' 'setting Aside Default Judgment' 'dispensing With Notice Under Mortgage']
['mortgages' 'real Property' 'civil Procedure'] ['contract for Sale of Land Payable by Instalments' 'mortgage Default Notice' 'power of Sale' 'default Judgment' 'setting Aside Default Judgment' 'dispensing With Notice Under Mortgage']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Default Judgment for Possession of Mortgaged Land / Court of Appeal of the Supreme Court of New South Wales From Perpetual Limited (formerly Known as Perpetual Trustees Australia Limited) V Marwa Dilati and Khalid Ali Khalid [2011] NSWSC 1259

Legal Issues

  1. 1 ['Whether the primary judge identified an error sufficient to exercise his own discretion in accordance with House v R.' 'Whether the default notice served under Real Property Act 1900, s 57(2)(b) was invalid because the amount due was overstated.' 'Whether Perpetual should have been permitted to argue that no s 57(2)(b) notice was required because there was a non-monetary default by sale without prior consent.' 'Whether cl 8.2 of the mortgage memorandum was an agreement within Real Property Act 1900, s 58A(1) dispensing with notice for a non-monetary default.' 'Whether Mr Khalid had sufficient interest to set aside the default judgment.']

Ratio Decidendi

Leave to appeal was granted, but the appeal was dismissed because the s 57(2)(b) default notice was valid: Mrs Dilati received account statements, knew or had the means of knowing the redraws and resulting balances, continued making instalment payments calculated on those balances, did not dispute the notice, and entered into a repayment agreement accepting liability. In any event, cl 8.2 of the mortgage memorandum, properly construed, dispensed under s 58A(1) with notice for the non-monetary default constituted by the sale of the land to Mr Khalid without Perpetual's prior written consent, so setting aside the default judgment would be futile.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed.' "The appellant to pay the respondent's costs of the appeal."]