Spencer v Bamber [2011] NSWSC 141

Spencer v Bamber [2011] NSWSC 141

Although there is a serious question to be tried regarding the validity of the foreclosure order and the plaintiff's right to restore his equity of redemption, the balance of convenience does not favour extending the caveat, as the defendants (as mortgagees if foreclosure set aside) are entitled to exercise power of sale, and the plaintiff has not offered to satisfy the mortgage debt. The court instead accepts undertakings from the defendants to preserve the plaintiff's ability to restore his equity of redemption, if successful at final hearing.

Parties
Plaintiff: Peter James Spencer; 1st Defendant: Wayne Dennis Bamber; 2nd Defendant: Deneva Jean Bamber; 3rd Defendant: Registrar-General of New South Wales; 4th Defendant: Peter Graham Luton
Jurisdiction
Australia
Judgment Date
01 March 2011
Procedural Posture
Interlocutory Application / Application to Extend Caveat Pending Final Hearing
Outcome
Application for further extension of caveat refused; undertakings accepted to preserve plaintiff's equitable position; costs of notice of motion to be costs in the proceedings.
Legal Topics
Extension of Caveat, Foreclosure, Equity of Redemption, Mortgagees' Powers, Substituted Service, Balance of Convenience
Real Property Extension of Caveat Foreclosure Equity of Redemption Mortgagees' Powers Substituted Service Balance of Convenience

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Parties

Peter James Spencer

Plaintiff

Wayne Dennis Bamber

1st Defendant

Deneva Jean Bamber

2nd Defendant

Registrar-General of New South Wales

3rd Defendant

Peter Graham Luton

4th Defendant

Procedural Posture

Interlocutory Application / Application to Extend Caveat Pending Final Hearing

Legal Issues

  1. 1 Whether the foreclosure order was validly made
  2. 2 Whether the requirements for substituted service under s 170(1)(d) Conveyancing Act 1919 and s 61(2)(d) Real Property Act 1900 were satisfied
  3. 3 Whether the balance of convenience favoured extension of caveat

Ratio Decidendi

Although there is a serious question to be tried regarding the validity of the foreclosure order and the plaintiff's right to restore his equity of redemption, the balance of convenience does not favour extending the caveat, as the defendants (as mortgagees if foreclosure set aside) are entitled to exercise power of sale, and the plaintiff has not offered to satisfy the mortgage debt. The court instead accepts undertakings from the defendants to preserve the plaintiff's ability to restore his equity of redemption, if successful at final hearing.

Court Disposition

Application for further extension of caveat refused; undertakings accepted to preserve plaintiff's equitable position; costs of notice of motion to be costs in the proceedings.

Orders

  • Refuse to further extend caveat number AF82253.
  • Decline to grant leave to the plaintiff to lodge a further caveat in respect of the same estate or interest or right as claimed in caveat number AF82253.