Xenos v NAB [2007] NSWSC 973

NAB sold the property exercising power of sale and there was $84k surplus. There were several caveators and as is the usual proper practice NAB paid the surplus monies into Court. NAB used the file number in the original enforcement proceedings to do so. Upon being notified the monies were paid into Court (by NAB) two of the caveators commenced separate proceedings claiming the money while the borrower made his own claim in the enforcement proceedings.

The borrower mislead the court into thinking there were no other claims and got the money. When the mistake was discovered the Judge asked the rival claimant why separate proceedings were commenced (which led to the mistake). He was told that the registry required it. If this is the case the registry needs to review its procedures. The Judge ordered the borrower to repay the money into court.

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