DAVRIDGE PTY LIMITED v COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 143

DAVRIDGE PTY LIMITED vy COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 5 February 1996

[1996] NSWCA 143

Mahoney JA. This is a difficult application. It arises from the fact that a judgment was given by Giles J, Chief Judge of the Commercial Division, on 9 November 1995 against Davridge Pty Limited and three individuals. They are now the claimants for a stay of execution on the judgment.

Mr O' Loughlin for the applicants, and Mr Bell for the Bank, have, if I may say so, approached this matter in a very practical way and a very sensible way, and what they have said has given me a clearer picture than would appear from the multitudinous documents that have been (necessarily) placed before the Court. They will, no doubt, correct me in relation to any errors that I make in the statement of the facts and of the position which emerges from them.

Put broadly, the position appears to be that a number of securities were given by Davridge Pty Limited and other companies, and by the three persons concerned, to support indebtedness to the Bank in respect of building activities carried on by Mr Gregory Malouf, and by associated persons and companies.

The building activities proved, ultimately, financially unsuccessful to the extent that the Bank commenced to call upon its securities. Contests were raised in relation to some at least of them and the Bank brought the proceedings, which culminated in the judgment given by his Honour, to which I have referred.

Subject relevantly to one matter, his Honour appears to have upheld the indebtedness to the Bank by the relevant parties of the group and the securities which have been given by way of mortgages, guarantees and otherwise. The one exception which it is relevant to note is that, as Mr Bell has properly pointed out, the judge upheld a defence of George Tewfic Malouf (to whom I shall refer to conveniently as 'the doctor') in relation to one mortgage; he reduced the amount of what otherwise would be the indebtedness to an amount of some $537,031.19. The material order is that contained in par 10 of the judge's orders.