Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1313

Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1313

Service of notice of intention to apply for a foreclosure order was sufficiently effected by delivery to plaintiff's solicitor and by email; no breach of natural justice occurred, the Registrar's powers and any procedural irregularity may be cured by nunc pro tunc order, so there is no factual or legal basis to set aside the order for foreclosure.

Jurisdiction
Australia
Judgment Date
03 November 2011
Procedural Posture
Civil / Final Judgment
Outcome
Amended summons dismissed with costs
Legal Topics
['foreclosure' 'service of Notice' 'powers of Registrar' 'nunc Pro Tunc Orders']
['real Property' 'conveyancing' 'civil Procedure'] ['foreclosure' 'service of Notice' 'powers of Registrar' 'nunc Pro Tunc Orders']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether service of notice of intention to foreclose was sufficient under Real Property Act 1900 s 61 and Conveyancing Act 1919 s 170' 'Whether personal service is required for notice of intention to foreclose' 'Whether Registrar is empowered to exercise powers under Conveyancing Act 1919 s 170' 'Whether a nunc pro tunc order can be made to cure procedural irregularity']

Ratio Decidendi

Service of notice of intention to apply for a foreclosure order was sufficiently effected by delivery to plaintiff's solicitor and by email; no breach of natural justice occurred, the Registrar's powers and any procedural irregularity may be cured by nunc pro tunc order, so there is no factual or legal basis to set aside the order for foreclosure.

Court Disposition

Amended summons dismissed with costs

Orders

  • ["Service of notice by first and second defendants of intention to apply for foreclosure order validly effected by delivery to plaintiff's solicitor on or about 17 June 2010" 'Dismissal of amended summons' 'Plaintiff to pay costs of first and second defendants' "Liberty reserved to first and second defendants to...