Kim Maree Bolitho v Permanent Custodians Limited & Anor [2009] NSWCA 168

Kim Maree Bolitho v Permanent Custodians Limited & Anor [2009] NSWCA 168

The appeal was dismissed because there was inadequate evidence of misconduct by the mortgagee or complicit behaviour by third party purchasers, and damages were considered an adequate remedy. The order of the primary judge dismissing the summons was set aside to preserve the plaintiff's right to pursue a separate...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
Application for Leave to Appeal and Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed, leave to appeal granted, order of primary judge varied to set aside dismissal of summons, no order as to costs.
Legal Topics
['mortgagee Duty of Care' 'injunctions' 'appeals' 'settlement of Property Sale' 'damages Remedy']
['civil Procedure' 'property Law'] ['mortgagee Duty of Care' 'injunctions' 'appeals' 'settlement of Property Sale' 'damages Remedy']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether an injunction should restrain completion of a property settlement by a mortgagee in possession' 'Whether evidence supports allegations of misconduct by the mortgagee in sale process' 'Whether damages are an adequate remedy for alleged misconduct']

Ratio Decidendi

The appeal was dismissed because there was inadequate evidence of misconduct by the mortgagee or complicit behaviour by third party purchasers, and damages were considered an adequate remedy. The order of the primary judge dismissing the summons was set aside to preserve the plaintiff's right to pursue a separate claim for damages.

Court Disposition

Appeal dismissed, leave to appeal granted, order of primary judge varied to set aside dismissal of summons, no order as to costs.

Orders

  • ['Dispense with the rules in relation to filing of any formal documents for the application for leave to appeal or appeal.' 'Grant leave to appeal.' 'Subject to order 4, dismiss the appeal.' 'Vary the orders of the primary judge by setting aside the order dismissing the summons.' 'No order as to costs of appeal.']