LONG LEYS CO PTY LTD v SILKDALE PTY LTD [1992] NSWCA 140

LONG LEYS CO PTY LTD v SILKDALE PTY LTD [1992] NSWCA 140

Summary judgment should not have been entered for the respondent because, at the relevant time, it was only an equitable assignee and not the registered mortgagee; there was at least a triable issue as to whether its notice of demand was effective. Accordingly, the application for summary judgment should have been dismissed with costs before the Master; no order as to costs before Sully J or the Court of Appeal given the point was not raised earlier.

Parties
Appellant: Long Leys Co Pty Ltd; Respondent: Silkdale Pty Ltd
Jurisdiction
Australia
Judgment Date
13 March 1992
Procedural Posture
Civil Appeal / Costs Applications Following Appeal Decision
Outcome
Summary judgment set aside; costs order varied
Legal Topics
Summary Judgment, Equitable Assignment, Costs
Civil Procedure Summary Judgment Equitable Assignment Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Long Leys Co Pty Ltd

Appellant

Silkdale Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Costs Applications Following Appeal Decision

Legal Issues

  1. 1 Whether summary judgment should have been granted when respondent was an equitable assignee but not registered mortgagee
  2. 2 Whether notice of demand by the respondent was effective
  3. 3 Entitlement to costs for proceedings before the Master, single judge (Sully J), and Court of Appeal

Ratio Decidendi

Summary judgment should not have been entered for the respondent because, at the relevant time, it was only an equitable assignee and not the registered mortgagee; there was at least a triable issue as to whether its notice of demand was effective. Accordingly, the application for summary judgment should have been dismissed with costs before the Master; no order as to costs before Sully J or the Court of Appeal given the point was not raised earlier.

Court Disposition

Summary judgment set aside; costs order varied

Orders

  • Respondent to pay the appellant's costs of the proceedings before the Master.
  • No order as to costs for the proceedings before Sully J or the Court of Appeal.