National Australia Bank v Sayed (No. 3) [2015] NSWSC 1473

National Australia Bank v Sayed (No. 3) [2015] NSWSC 1473

A claim for damages from alleged undervalue in sale of other land (Corrimal) is not an equitable set-off and does not impeach the mortgagee's title to the land subject to the possession order (Woonona). The cross-claim would not satisfy the debt due, and no evidence supported the alleged breach of the In Principle Agreement or that the debts were connected. The stay of execution was therefore refused.

Jurisdiction
Australia
Judgment Date
07 October 2015
Procedural Posture
Procedural and Other Rulings / Application for Stay of Execution Pending Cross Claim Determination
Outcome
Notice of Motion for stay is dismissed with costs.
Legal Topics
['mortgages' 'possession of Land' 'stay of Execution' 'equitable Set Off' 'damages']
['real Property' 'equity'] ['mortgages' 'possession of Land' 'stay of Execution' 'equitable Set Off' 'damages']

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Procedural Posture

Procedural and Other Rulings / Application for Stay of Execution Pending Cross Claim Determination

Legal Issues

  1. 1 ['Whether cross-claim for sale of other land at under value amounts to equitable set-off against possession judgment' 'Whether damages from cross-claim would satisfy debt and justify stay of execution' 'Whether claimed breach of In Principle Agreement supports stay']

Ratio Decidendi

A claim for damages from alleged undervalue in sale of other land (Corrimal) is not an equitable set-off and does not impeach the mortgagee's title to the land subject to the possession order (Woonona). The cross-claim would not satisfy the debt due, and no evidence supported the alleged breach of the In Principle Agreement or that the debts were connected. The stay of execution was therefore refused.

Court Disposition

Notice of Motion for stay is dismissed with costs.

Orders

  • ['The Notice of Motion of 4 September 2015 is dismissed with costs.']