Avery v Saree Holdings Ltd; Lava Ltd v Avery

[2012] NSWSC 463

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. REAL PROPERTY - mortgages - whether monies owing on mortgage - whether side agreement that monies not owing effective - two proceedings heard together-brought by mortgagor, Ms Avery against first and second mortgagees of Torrens title land, respectively Lava and Saree - first mortgagee entered judgment for possession against plaintiff/mortgagor in March 2009 - plaintiff/mortgagor seeks to set aside in Lava proceedings - plaintiff/mortgagor seeks declaratory relief against Saree mortgagee.
1. PROCEDURE - judgment and orders - varying, amending or setting aside - whether existing judgment for possession in Lava proceedings should be set aside under UCPR, r 36.15 as irregularly entered due to Consumer Credit Code, s 80 notice not being served before commencement of proceedings - whether "sufficient course" is shown to set aside judgment - HELD - no irregularity in the entry of judgment - in any event sufficient cause not shown to set aside judgment for possession.
1. MORTGAGE - the mortgage - second mortgage registered with Saree as mortgage - plaintiff/mortgagor claims agreed in side agreement as part of illegal scheme that no money is owing to Saree on second mortgage - HELD: side agreement not part of illegal scheme - directions for taking of accounts.