Kim Maree Bolitho v Permanent Custodians Limited

This matter concerned an application for leave to appeal, or an appeal, from a decision of Gzell J in the Equity Division of the Supreme Court of New South Wales. The applicant, Kim Maree Bolitho, sought to restrain the respondent, Permanent Custodians Limited, from proceeding with the sale of a property located in Avalon, New South Wales. Permanent Custodians Limited, as the first registered mortgagee, had obtained judgment for possession of the property due to an alleged default by Ms. Bolitho, the registered proprietor. Ms. Bolitho contended that her default was minor. The dispute before the Court of Appeal arose from the refusal by Gzell J to grant orders preventing the sale of the property.

The central legal issues before the Court of Appeal were whether leave to appeal should be granted from Gzell J's refusal to restrain the sale, and if so, whether the appeal should be upheld. This involved considering the primary judge's decision in light of the circumstances surrounding the mortgage, the entry into possession by the mortgagee, and previous interlocutory injunctions granted and varied by other judges of the Equity Division. The Court also had to determine the appropriate orders to make regarding the filing of documents for the appeal.

The Court of Appeal, in a joint judgment delivered by Allsop P, granted leave to appeal. However, subject to a variation of the primary judge's orders, the appeal was dismissed. The Court varied the orders of the primary judge by setting aside the order that dismissed Ms. Bolitho's summons. This indicates that while the ultimate sale of the property was not prevented, the procedural steps taken by the primary judge were found to be erroneous. The Court also dispensed with the usual rules regarding the filing of formal documents for the application for leave to appeal.