Permanent Custodians Ltd v Barton [2008] NSWSC 1355

Permanent Custodians Ltd v Barton [2008] NSWSC 1355

There is no evidence or reasonable basis suggesting that Permanent Custodians acted unconscionably, had notice of any special disability, or were involved in unfair conduct. The defences raised—equitable relief, the Contracts Review Act, and s 106 of the Industrial Relations Act—do not provide an arguable case against the mortgagee, who acted innocently and at arm's length. Remedies, if any, lie against third parties, not against the mortgagee.

Jurisdiction
Australia
Judgment Date
16 December 2008
Procedural Posture
Motion / Application to Set Aside Default Judgment
Outcome
Application dismissed
Legal Topics
['mortgagee Sale' 'setting Aside Judgment' 'contracts Review Act' 'industrial Relations Act' 'equitable Relief' 'indefeasibility of Title']
['mortgage' 'contract' 'industrial Relations' 'equity'] ['mortgagee Sale' 'setting Aside Judgment' 'contracts Review Act' 'industrial Relations Act' 'equitable Relief' 'indefeasibility of Title']

Case Brief

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Procedural Posture

Motion / Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment obtained by the plaintiff should be set aside' "Whether there is an arguable defence to the plaintiff's claim based on unconscionability or undue influence" 'Whether the Contracts Review Act 1980 provides grounds to void the mortgage' 'Whether s 106 of the Industrial Relations Act 1996 provides grounds to void or vary the mortgage']

Ratio Decidendi

There is no evidence or reasonable basis suggesting that Permanent Custodians acted unconscionably, had notice of any special disability, or were involved in unfair conduct. The defences raised—equitable relief, the Contracts Review Act, and s 106 of the Industrial Relations Act—do not provide an arguable case against the mortgagee, who acted innocently and at arm's length. Remedies, if any, lie against third parties, not against the mortgagee.

Court Disposition

Application dismissed

Orders

  • ['The motion of the defendants, filed 26 May 2008, to set aside default judgment obtained on 13 May 2008, be dismissed.' 'The motion of the defendants, in the alternative, to stay the aforesaid default judgment be dismissed.' "The defendants pay the plaintiff's costs of and incidental to the motion, as agreed or...