Perpetual Trustees Victoria Ltd v English (No 3)

In *Perpetual Trustees Victoria Ltd v English (No 3)*, the Court of Appeal of New South Wales considered an appeal by Perpetual Trustees Victoria Ltd (the appellant) against orders made by a single judge. The dispute concerned a mortgage over a property and the appellant's right to enforce it against the interest of the first respondent, Mr English, whose interest had vested in the Official Trustee. The appeal also involved an application by the appellant for leave to bring and continue proceedings against Mr English, and for the appointment of trustees for sale of the property.

The primary legal issues before the Court of Appeal were whether the mortgage held full force and effect against Mr English's interest in the property, and whether the court had the power to make certain orders by consent, particularly in relation to the sale of the property and the distribution of proceeds. The court also had to determine whether to grant leave nunc pro tunc for the appellant to continue proceedings against Mr English, and to appoint trustees for sale under section 66G of the *Conveyancing Act 1919* (NSW).

The Court of Appeal reasoned that the mortgage was valid and enforceable against Mr English's interest in the property, and declared it to have full force and effect. The court also made orders for the sale of the property by trustees for sale if contracts were not exchanged by a specified date, outlining the process for appointing trustees and the distribution of sale proceeds. Crucially, the court granted leave nunc pro tunc for the appellant to bring and continue proceedings against Mr English, thereby validating the proceedings.

The final orders of the Court of Appeal included a declaration that the mortgage had full force and effect against Mr English's interest in the property. The court also appointed specific individuals as trustees for sale and granted them possession of the property, with leave to issue a writ of possession if necessary. The orders further stipulated the terms for the sale of the property and the distribution of the net proceeds, with a portion to be paid to Ms English, subject to a delay to allow for notification.