Boutros v Nationwide Capital Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246

Hearing dates:

29 July 2013

Decision date:

01 August 2013

Before:

Gleeson JA

Decision:

(1) The applicant's notice of motion filed 18 July 2013 be dismissed.

(2) The applicant pay the first and second respondents' costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - judgments and orders - actions on judgments - stay of orders - r 51.44 Uniform Civil Procedure Rules 2005 - judicial sale - ancillary orders for possession subsequently made - whether arguable case for appeal

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Australian Hardboards Limited v Hudson Investment Group [2007] NSWCA 104; 70 NSWLR 201
Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236; 12 BPR 98145
Harden Shire Council v Richardson [2012] NSWSC 622
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737
King Investment Solutions v Hussain [2005] NSWSC 1076; 13 BPR 98296
Mills v Lewis (1983) 3 BPR 9421
Phillips v Walsh (1990) 20 NSWLR 206
Prior v Simeon [2010] WASC 382
Prior v Simeon (No 2) [2011] WASC 61
Re Gordon (1889) 61 LT (NS) 299
Vaughan v Dawson [2008] NSWCA 169

Texts Cited:

Wade, "An Equitable Mortgagee's Right to Possession" (1955) 71 Law Quarterly Review 204

Category:

Procedural and other rulings

Parties:

Malke Boutros (Applicant)
Nationwide Capital Pty Ltd (First Respondent)
Westpac Banking Corporation (Second Respondent)

Representation:

Counsel:
D Allen (Applicant)
M W Young (First Respondent)
M Wirth (Second Respondent)
Solicitors:
Chidiac Legal (Applicant)
Bransgroves Lawyers (First Respondent)
Kemp Strang (Second Respondent)

File Number(s):

2013/218731

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

Nationwide Capital Pty Ltd v Boutros Constructions Pty Ltd and others [2013] NSWSC 976

Date of Decision:

2013-07-09 00:00:00

Before:

McDougall J

File Number(s):

2011/198240

Judgment

1. GLEESON JA: By notice of motion filed on 18 July 2013, the applicant, Malke Boutros, seeks an order staying orders made by McDougall J in the proceedings below on 9 July 2013. Those orders required (1) that the applicant provide to the first respondent (Nationwide) vacant possession of a property at Croydon Park, within 21 days; and (2) granted leave for the issue of a writ of possession with respect to the property. By Order 3, execution of the writ was stayed until the further order of the Court. (No order permitting enforcement of the writ of possession has yet…