Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Permanent Custodians Ltd v Nadrak Pty Ltd [1996] NSWCA 426 Decision date: 06 November 1996
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Details
- AGLC
- Permanent Custodians Ltd v Nadrak Pty Ltd [1996] NSWCA 426
- Case
- [1996] NSWCA 426
- Decision Date
CaseChat Overview and Summary
Permanent Custodians Ltd (the plaintiff) sought to recover possession of land from Nadrak Pty Ltd (the defendant) under a registered mortgage. The dispute concerned whether the plaintiff had validly exercised its power of sale under the mortgage. The matter came before the New South Wales Court of Appeal.
The primary legal issue before the Court of Appeal was whether the plaintiff had complied with the requirements of section 92 of the *Real Property Act 1900* (NSW) before exercising its power of sale. Specifically, the Court had to determine if the notice served on the defendant was a valid notice of default and demand for payment, and if the subsequent sale was conducted in good faith and for the best price reasonably obtainable.
The Court of Appeal held that the notice served by the plaintiff was defective because it did not specify the exact amount due under the mortgage, nor did it provide a reasonable time for the defendant to remedy the default. Consequently, the plaintiff had not satisfied the preconditions for exercising its power of sale under section 92 of the *Real Property Act 1900*. The Court further found that even if the notice had been valid, the sale was not conducted in good faith, as the plaintiff had not taken reasonable steps to obtain the best price reasonably obtainable for the property.
The Court of Appeal allowed the defendant's appeal, set aside the order for possession, and ordered that the plaintiff pay the defendant's costs.
The primary legal issue before the Court of Appeal was whether the plaintiff had complied with the requirements of section 92 of the *Real Property Act 1900* (NSW) before exercising its power of sale. Specifically, the Court had to determine if the notice served on the defendant was a valid notice of default and demand for payment, and if the subsequent sale was conducted in good faith and for the best price reasonably obtainable.
The Court of Appeal held that the notice served by the plaintiff was defective because it did not specify the exact amount due under the mortgage, nor did it provide a reasonable time for the defendant to remedy the default. Consequently, the plaintiff had not satisfied the preconditions for exercising its power of sale under section 92 of the *Real Property Act 1900*. The Court further found that even if the notice had been valid, the sale was not conducted in good faith, as the plaintiff had not taken reasonable steps to obtain the best price reasonably obtainable for the property.
The Court of Appeal allowed the defendant's appeal, set aside the order for possession, and ordered that the plaintiff pay the defendant's costs.
Orders
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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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