Khalid v Perpetual Limited

Case [2012] NSWCA 153

Court of Appeal

New South Wales
Case Title: Khalid v Perpetual Limited
Medium Neutral Citation: [2012] NSWCA 153
Hearing Date(s): 3 May 2012
Decision Date: 29 May 2012
Jurisdiction:
Before:

Beazley JA at [1]; 
Whealy JA at [61]; 
Tobias AJA at [62]
Decision:

1. Grant leave to appeal;
2. Appeal dismissed;
3. The appellant to pay the respondent's costs of the appeal.

[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:

MORTGAGES - Contract for sale of land - Purchase price payable by instalments - Property subject to mortgage - Mortgagor defaulted on home loan - Mortgagee issued default notice to mortgagor under Real Property Act 1900, s 57(2)(b) - Default judgment entered - Whether overstatement of amount due - Alleged invalidity of s 57(2)(b) notice - Section 57(2)(b) notice valid - Clause in mortgage dispensing with notice requirements - Clause in mortgage effective to dispense with notice requirements under the Act - Real Property Act, s 58A(1) - Appeal dismissed.

DEFAULT JUDGMENT - Third party claims sufficient interest to set aside - No basis to set aside default judgment.
Legislation Cited:

Real Property Act 1900
Cases Cited:

Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; 153 CLR 491
Chang v Registrar of Titles (Vic) [1976] HCA 1; 137 CLR 177
Farrow Mortgage Services Pty Limited v Ragata Developments Pty Limited (1993) 32 NSWLR 333
House v R [1936] HCA 40; 55 CLR 499
KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] HCA 63; 155 CLR 288
Notaras v Sly & Weigall [2005] NSWCA 275; 12 BPR 23,765
Topfelt Pty Limited v State Bank of New South Wales Limited (1993) 6 BPR 13, 209
Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573
Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) 6 BPR 13, 527
Texts Cited:
Category: Principal judgment
Parties:

Khalid Ali Khalid (Appellant)
Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) (First Respondent)
Marwa Dilati (Second Respondent)
Representation
- Counsel:

Counsel:
M W Young SC (Appellant)
N Bearup (First Respondent)
- Solicitors:

Solicitors:
Pope & Spinks (Appellant)
Gadens Lawyers (First Respondent)
File number(s):

2009/296958
Decision Under Appeal
- Court / Tribunal:
- Before: James J
- Date of Decision: 27 October 2011
- Citation: Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) v Marwa Dilati and Khalid Ali Khalid [2011] NSWSC 1259
- Court File Number(s) 2009/296958
Publication Restriction:

No

JUDGMENT

  1. BEAZLEY JA: The appellant, Mr Khalid, seeks leave to appeal from the decision of James J given on 27 October 2011 in which his Honour…

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Khalid v Perpetual Limited [2012] NSWCA 153
Case
[2012] NSWCA 153
Decision Date

CaseChat Overview and Summary

Khalid (the appellant) appealed to the Court of Appeal of New South Wales against a decision concerning a contract for the sale of land. The property was subject to a mortgage, and the mortgagor defaulted on their home loan. The mortgagee, Perpetual Limited (the respondent), issued a default notice to the mortgagor under section 57(2)(b) of the *Real Property Act 1900* (NSW), and subsequently obtained a default judgment. The appellant contended that the amount claimed in the default notice was overstated and that the notice itself was invalid.

The primary legal issues before the Court of Appeal were whether the default notice issued by the respondent was valid, and whether the default judgment should be set aside. Specifically, the court had to determine if the notice complied with the requirements of section 57(2)(b) of the *Real Property Act 1900*, and if a clause within the mortgage agreement could dispense with the statutory notice requirements. The appellant also argued that they had a sufficient interest to set aside the default judgment.

The Court of Appeal held that the section 57(2)(b) notice was valid. The court found that a clause within the mortgage agreement effectively dispensed with the notice requirements under the *Real Property Act 1900*, including those stipulated in section 57(2)(b), and that section 58A(1) of the Act permitted such a dispensation. Consequently, the court found no basis to set aside the default judgment.

Leave to appeal was granted, but the appeal was ultimately dismissed. The appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Grant leave to appeal;

2. Appeal dismissed;

3. The appellant to pay the respondent's costs of the appeal.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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