Burge v Commonwealth Bank of Australia (No 2) [2016] FCA 1555

FEDERAL COURT OF AUSTRALIA

Burge v Commonwealth Bank of Australia (No 2) [2016] FCA 1555 File number: NSD 1615 of 2016

Judge: FOSTER J

Date of judgment: 19 December 2016

Cases cited: Burge v Commonwealth Bank of Australia [2016] FCA 1159

Date of hearing: 19 December 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Applicant: Mr PE King

Solicitor for the Applicant: The applicant did not retain a solicitor

Counsel for the First Respondent: Mr P Jackson SC

Solicitor for the First Respondent: Simmons Wolfhagen

Counsel for the Third Respondent: Mr MW Wise

Solicitor for the Third Respondent: Arslan Lawyers

ORDERS NSD 1615 of 2016

BETWEEN: SUSAN BURGE Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA First Respondent

FINANCIAL OMBUDSMAN SERVICE LIMITED Third Respondent

JUDGE: FOSTER J DATE OF ORDER: 19 DECEMBER 2016

THE COURT ORDERS THAT:

1. The Interlocutory Application filed by the applicant on 12 December 2016 be dismissed. 2. The applicant pay the first respondent's costs of and incidental to that Application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

FOSTER J: 1 This proceeding was commenced on 21 September 2016. The next day (22 September 2016), in circumstances which I have outlined in earlier reasons for judgment in this matter (Burge v Commonwealth Bank of Australia [2016] FCA 1159) (Burge No 1), the applicant sought to restrain the sale by auction of a parcel of residential real estate owned by her known as 127 Elphin Road, Newstead, Tasmania (the Elphin Road property). On the same day, I refused the applicant's application to restrain that auction (see Burge No 1). 2 I have been informed by Senior Counsel for the first respondent that, in light of the judgment which I delivered in Burge No 1, the auction of the Elphin Road property which had been programmed to take place on 23 September 2016, in fact, took place on that day and that a contract for the sale of the property was entered into with the successful bidder at the auction. I have also been informed that completion was due to take place on 22 November 2016 but has recently been extended to a later date. Counsel for the applicant informed me that he was not in a position to confirm or deny the correctness of these matters. 3 On 12 December 2016, after I had fixed for hearing today two applications made by the respondents seeking orders that these proceedings be summarily dismissed, the applicant filed an Interlocutory Application in which she sought the following relief: 1. That the defendant is urgently restrained from transferring title of 127 Elphin Road, Newstead in Tasmania until further order of this Court or agreement between the applicant and the defendant. 2. That the applicant be granted the right to defend the 2015/2016 possession and or sale of her properties 127 Elphin Road, Newstead in Tasmania and 15 Abbott Street, East Launceston in Tasmania, as was her right to do under the Lands Title Act Section 146.2. Supporting evidence on this matter show that there is a serious question to be tried in this matter. 3. Any further orders that seem appropriate to the Court. 4. Costs. 4 That application was supported (inter alia) by an affidavit sworn by the applicant on 12 December 2016. 5 The only circumstance which has changed since I delivered judgment in Burge No 1 is that the Elphin Road property has now been sold at auction and that that sale is awaiting completion. This, of course, means that the interests of a bona fide purchaser for value without notice must be taken into account in considering the applicant's latest Interlocutory Application. Those interests require me to refuse the applicant's application. 6 Further, and in any event, the reasons which I gave for refusing the applicant's earlier application for interlocutory injunctive relief to restrain the auction of the Elphin Road property remain apt as reasons for refusing the present application. Indeed, one might wonder why the present application for injunctive relief was being made at all when it must have been obvious to the applicant and to her Counsel that no change in the relevant circumstances which could conceivably be of assistance to the applicant had occurred between 22 September 2016 and 12 December 2016, when her current application was filed. 7 When asked whether he wished to put any submission in support of the present application for interlocutory injunctive relief, Counsel for the applicant said that he did not wish to do so. He then asked the Court for permission to allow the applicant to make a statement. That permission was refused. 8 Accordingly, for the reasons which I have explained, I propose to dismiss the Interlocutory Application filed by the applicant on 12 December 2016 with costs. 9 There will be orders accordingly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.