Australia and New Zealand Banking Group Limited v Evans [2023] NSWSC 1018

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v Evans [2023] NSWSC 1018 Hearing dates: 14 August 2023 Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: To be found at [78] Catchwords: MORTGAGES — where Bank seeks possession of three rural properties — breach of agreement entered after mediation under Farm Debt Mediation Act 1994 (NSW) — exemption certificate issued under Farm Debt Mediation Act in force under ss 13 and 14 — where summary judgment, leave to issue writs of possession, summary dismissal of cross-claim and other orders are sought by Bank — orders made CIVIL PROCEDURE — Cross-claim — against Bank and "associated parties to the contract" — where claims include that the statement of claim is a "security" and a "set off" of the face value of the security and that refusal of Bank's claims is supported by the Income Tax Assessment Act 1936 (Cth) ­— whether cross-claim should be summarily dismissed CIVIL PROCEDURE — Notices of motion — where defendant seeks orders setting aside originating process and seeks protection of property from seizure — where defendant puts in issue Court's jurisdiction to make orders — Court has appropriate jurisdiction — where defendant also seeks orders allowing withdrawal of defence and cross-claim Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth) Bills of Exchange Act 1909 (Cth) Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth) Farm Debt Mediation Act 1994 (NSW), ss 11,14 Foreign Account Taxation Compliance Act 2014 (USA) Income Tax Assessment Act 1936 (Cth), ss 102AAB, 102 Local Government Act 1993 (NSW) Real Property Act 1900 (NSW), s 57 Supreme Court Act 1970 (NSW), s 22, 23 Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 12.6. 42.1 Commonwealth Constitution, s 55 Third Royal Charter of Justice The Convention between the Government of Commonwealth of Australia and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income Cases Cited: Australia and New Zealand Banking Group Ltd v Evans; Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 8; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 [1964] HCA 69 Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18 Snowy Valleys Council v Evans [2021] NSWSC 428 Category: Principal judgment Parties: Australia and New Zealand Banking Group Limited (Plaintiff) Anthony William Evans (First Defendant) Juana Gave Evans (Second Defendant) Representation: Counsel: Mr J Burnett (Plaintiff) Mr Anthony William Evans (self-represented) Ms Juana Gave Evans (no appearance) Solicitors: Dentons Australia Pty Limited (Plaintiff) File Number(s): 2023/00075490