HSBC Bank Australia Limited v The Trustee of the Property of Rui Yu, a Bankrupt (No 2) [2024] NSWSC 301

Supreme Court New South Wales

Medium Neutral Citation: HSBC Bank Australia Limited v The Trustee of the Property of Rui Yu, a Bankrupt (No 2) [2024] NSWSC 301 Hearing dates: 25 March 2024 Date of orders: 25 March 2024 Decision date: 25 March 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. The amended defence filed 20 February 2024 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff, for possession of the whole of the land known as 43/42-48 Waverley Street, Bondi Junction, NSW, 2022, which is the land contained in lot 43 in strata plan 85814, being the whole of the land comprising certificate of title, folio identifier 43/SP85814. 3. The plaintiff has leave to issue a writ of possession in respect of the property, such writ not to be executed before 20 May 2024. 4. Judgment for the plaintiff against the second defendant for the amount of $977,608.26, inclusive of interest at the rates prescribed under the loan agreement up to the date of this order. 5. An order pursuant to s 101 of the Civil Procedure Act 2005 (NSW) that interest is payable by the second defendant to the plaintiff on the debt at the rate prescribed under the loan agreement that apply to the amount due and payable by the second defendant. 6. An order that the second defendant pay the plaintiff's costs of an incidental to these proceedings, on an indemnity basis as specified in paragraph 8 of the affidavit of Michael Lockie affirmed 21 March 2024, pursuant to the terms of the loan agreement. Catchwords: LAND LAW – possession of land – default under loan agreement and mortgage – where second defendant had been bankrupted but bankruptcy annulled – where trustee held funds of bankrupt – where second defendant intended to use funds held by trustee to satisfy debt to mortgagee – where no arrangements made for application of funds - where no defence to mortgagee's claim – summary judgment given Legislation Cited: Bankruptcy Act 1966 (Cth) s 58 Civil Procedure Act 2005 (NSW) s 101 Real Property Act 1900 (NSW) ss 57, 90 Uniform Civil Procedure Rules 2005 (NSW) rr 31.1, 14.28 Cases Cited: HSBC Bank Australia Limited v The Trustee of the Property of Rui Yu, a Bankrupt [2024] NSWSC 69 Texts Cited: Nil Category: Principal judgment Parties: HSBC Bank Australia Limited (Plaintiff) The Trustee of the Property of Rui Yu, a Bankrupt (First Defendant) Rui Yu (Second Defendant) File Number(s): 2023/167485 Publication restriction: Nil