Nationwide Capital v Boutros Constructions [2013] NSWSC 976

Nationwide Capital v Boutros Constructions [2013] NSWSC 976

The order for possession is an incident necessary to work out the judicial sale already ordered under court supervision; supervision of sale implies liberty to apply for further necessary orders, including possession; the relief sought against the third defendant is not new substantive relief but ancillary to the original orders.

Jurisdiction
Australia
Judgment Date
09 July 2013
Procedural Posture
Equity Proceeding Mortgage and Possession / Post Judgment Consequential Orders
Outcome
Orders granted as sought for vacant possession and writ of possession, with execution stayed until further order; third defendant to pay plaintiff's costs.
Legal Topics
['mortgages' 'judicial Sale' 'vacant Possession' 'consequential Orders']
['equity' 'corporations' 'property Law' 'civil Procedure'] ['mortgages' 'judicial Sale' 'vacant Possession' 'consequential Orders']

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Procedural Posture

Equity Proceeding Mortgage and Possession / Post Judgment Consequential Orders

Legal Issues

  1. 1 ['Whether the plaintiff can obtain an order for possession of mortgaged property after final judgment and an order for judicial sale under court supervision;' 'Whether such an order is an incident necessary to work out the original order for sale.']

Ratio Decidendi

The order for possession is an incident necessary to work out the judicial sale already ordered under court supervision; supervision of sale implies liberty to apply for further necessary orders, including possession; the relief sought against the third defendant is not new substantive relief but ancillary to the original orders.

Court Disposition

Orders granted as sought for vacant possession and writ of possession, with execution stayed until further order; third defendant to pay plaintiff's costs.

Orders

  • ['Third defendant to give plaintiff vacant possession of mortgaged property (Croydon Park).' 'Writ of possession to issue.' 'Execution of the writ stayed until further order.' 'Liberty to apply reserved.' "Third defendant to pay plaintiff's costs of the motion."]