Westpac Banking Corporation v Nirest Nominees Pty Ltd (under external administration) [2014] NSWSC 1745

Westpac Banking Corporation v Nirest Nominees Pty Ltd (under external administration) [2014] NSWSC 1745

Although the Receiver and Manager's letter did not expressly consent to the commencement of the proceedings, consent to enforcement of the default judgment necessarily implied consent to the proceedings having been brought. In those circumstances it was appropriate to grant leave nunc pro tunc and to permit enforcement of the judgment by writ of possession.

Jurisdiction
Australia
Judgment Date
05 December 2014
Procedural Posture
Interlocutory Applications; Possession Proceedings Pursuant to a Mortgage / Application for Leave Nunc Pro Tunc to Commence Proceedings Against the First Defendant and for Leave to Enforce Judgment by Writ of Possession
Outcome
Leave granted to the Plaintiff nunc pro tunc to commence proceedings against the First Defendant, and leave granted to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession.
Legal Topics
['receivers and Managers' 'external Administration' 'leave to Commence Proceedings' 'mortgage Possession' 'writ of Possession' 'nunc Pro Tunc Leave']
['corporations' 'banking and Finance' 'property'] ['receivers and Managers' 'external Administration' 'leave to Commence Proceedings' 'mortgage Possession' 'writ of Possession' 'nunc Pro Tunc Leave']

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Procedural Posture

Interlocutory Applications; Possession Proceedings Pursuant to a Mortgage / Application for Leave Nunc Pro Tunc to Commence Proceedings Against the First Defendant and for Leave to Enforce Judgment by Writ of Possession

Legal Issues

  1. 1 ['Whether leave should be granted nunc pro tunc to commence proceedings against the First Defendant where it was under external administration and neither leave nor administrator consent had been obtained under s 440D of the Corporations Act 2001 (Cth).' 'Whether the Plaintiff should have leave to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession.']

Ratio Decidendi

Although the Receiver and Manager's letter did not expressly consent to the commencement of the proceedings, consent to enforcement of the default judgment necessarily implied consent to the proceedings having been brought. In those circumstances it was appropriate to grant leave nunc pro tunc and to permit enforcement of the judgment by writ of possession.

Court Disposition

Leave granted to the Plaintiff nunc pro tunc to commence proceedings against the First Defendant, and leave granted to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession.

Orders

  • ['Leave granted to the Plaintiff nunc pro tunc to commence these proceedings against the First Defendant.' 'Leave to the Plaintiff to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession.']