BENSON v COMMONWEALTH BANK OF AUSTRALIA [1995] NSWCA 43

BENSON v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 6 April 1995

[1995] NSWCA 43

Mahoney JA. This is an application which comes before the Court in unusual circumstances. In deference to the arguments advanced by Mrs Cominos for the applicant, I shall set out what I understand the position is and the substance of the application and the substance of the material before the Court.

It is apparently not questioned that the Bank was owed by Mr Benson a sum in excess of $4 million. A document exchanged between them recites that an amount in excess of $4,300,000 was owing.

Proceedings were taken by the Bank for recovery of the amount and for possession of property apparently given by way of security for the loan. Orders were made by the Supreme Court on 28 July 1994 in proceedings referred to in the notice of motion of 6 April 1995 which is placed before me on this application. Those orders provided in substance that the Bank should have possession of the relevant properties.

Subsequently on 13 December 1994 a document bearing the heading 'Deed of Settlement' was entered into between Mr Benson and the Commonwealth Bank. That document provided in its recital an acknowledgment of certain mortgages being indefault; of the commencement of proceedings; of Mr Benson having initially defended the proceedings; to consent orders that have been made for the indebtedness in the amount in excess of $4,300,000 to which I have referred; and to the commencement of proceedings to enforce the consent orders of 28 July 1994 referred to in the documents. It recites that the parties 'have agreed to further record their overall settlement in the deed'.

The operative provisions of the deed provide that the parties agree to consent to the orders, the effect of those set out in the short minutes. Those short minutes appear to be minutes or orders providing, inter alia, for the giving of possession to the Bank of the properties here in question.