Perpetual Trustees Victoria Ltd v English (No 3) [2011] NSWCA 74

Perpetual Trustees Victoria Ltd v English (No 3) [2011] NSWCA 74

Where previous orders affecting a bankrupt and their property were made without required consent or leave, to ensure all procedural requirements are satisfied and orders are valid, the Court should grant leave nunc pro tunc and make orders for enforcement of security and appointment of trustees for sale under applicable statutory provisions.

Parties
Appellant: Perpetual Trustees Victoria Ltd; First Respondent: Niel William English; Second Respondent: Kerrie Diane Therese English
Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Appeal / Decision on Appeal; Consequential Orders Following Prior Appeal Judgment and Amended Notice of Motion
Outcome
Orders made in terms set out in paragraphs A and B of the judgment; leave nunc pro tunc granted; consequential orders made for sale and distribution of property proceeds.
Legal Topics
Statutory Trust for Sale, Mortgage Enforcement, Bankruptcy/secured Creditors, Appointment of Trustees, Consequential Orders
Property Law Procedure Bankruptcy Statutory Trust for Sale Mortgage Enforcement Bankruptcy/secured Creditors Appointment of Trustees Consequential Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Perpetual Trustees Victoria Ltd

Appellant

Niel William English

First Respondent

Kerrie Diane Therese English

Second Respondent

Procedural Posture

Appeal / Decision on Appeal; Consequential Orders Following Prior Appeal Judgment and Amended Notice of Motion

Legal Issues

  1. 1 Whether the mortgage has full force and effect against the interest of the first respondent in the property
  2. 2 Whether trustees for sale should be appointed under Conveyancing Act 1919 (NSW) s 66G
  3. 3 Whether orders made by consent are valid where a party has not consented

Ratio Decidendi

Where previous orders affecting a bankrupt and their property were made without required consent or leave, to ensure all procedural requirements are satisfied and orders are valid, the Court should grant leave nunc pro tunc and make orders for enforcement of security and appointment of trustees for sale under applicable statutory provisions.

Court Disposition

Orders made in terms set out in paragraphs A and B of the judgment; leave nunc pro tunc granted; consequential orders made for sale and distribution of property proceeds.

Orders

  • Declaration that mortgage has full force and effect as against first respondent's interest in 36 Brisbane Road, Castle Hill.
  • If contracts for sale of the property are not exchanged by 15 June 2010 on terms satisfactory to appellant, trustees for sale be appointed under s 66G as from 16 June 2010; property vested in trustees upon statutory trust for sale.