State Bank of NSW Ltd v White & Anor [1999] NSWSC 887

New South Wales Supreme Court CITATION : State Bank of NSW Ltd v White & Anor [1999] NSWSC 887 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 13264/96 HEARING DATE(S) : 31 August 1999 JUDGMENT DATE : 2 September 1999

State Bank of New South Wales Limited (Plaintiff)

PARTIES : David Stewart White (First defendant)

Lesleigh Whaite (Second defendant) JUDGMENT OF : Master Harrison

Mr L J Aitken with Ms C I Smith (Plaintiff)

COUNSEL : N/A (First Defendant)

Mr McQuillen (Second defendant) Ms Sancia de Jersey Abbott Tout (Plaintiff) SOLICITORS : Mr P McKell McKells (Second Defendant) CATCHWORDS : Leave to file cross claim ACTS CITED : Supreme Court Act 1970 CASES CITED : Payne v Young & Ors (1979-80) 145 CLR 609 Permanent Trustee Australia Ltd & Anor v Dowd 11 ACSR 68 DECISION : See para 13

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 2 SEPTEMBER 1999

13264/96 - STATE BANK OF NEW SOUTH WALES LIMITED DAVID STEWART WHITE & ANOR

JUDGMENT (Leave to file cross claim)

1 MASTER: By notice of motion filed 23 April 1999 the second defendant/cross claimant seeks orders that D S & L White Carrying Pty Limited (the company) be added as a cross claimant and that leave be granted to add the company as a party to these proceedings. The second defendant/cross claimant relied on two affidavits of Peter Brian McKell sworn 17 March 1999 and 31 May 1999. The plaintiff did not rely upon any affidavit evidence. It opposed the order sought. There was no appearance of David Stewart White the first named defendant. 2 The statement of claim pleads a cause of action which arose as between the State Bank of New South Wales Limited as plaintiff and David Stewart White and Lesleigh White as defendants. The defendants mortgaged to the plaintiff by way of third party mortgage the whole of the land and improvements contained in Certificate of Title Folio Identifier 15/702410 being the property known as 23 Shand Close Illawong (the property) to secure certain advances made by the plaintiff to D S & L White Carrying Pty Limited. 3 On about 19 July 1989 the funds were placed in the company account. It is pleaded that the company failed to repay the moneys advanced under the mortgage. The plaintiff has claimed a monetary sum of $442,273.50 and possession of the property from the defendants. 4 A cross claim has been filed by Lesleigh White as cross claimant against the plaintiff as cross defendant. The proposed amended cross claim names Lesleigh White as the first cross claimant and D S & L White Carrying Pty Limited (the company) as cross claimant and the plaintiff as cross defendant. The company had been deregistered but has now been "registered". The company consents to being joined as a cross claimant (Ex A). The company has not been named as a defendant in the statement of claim. It is a new party that is seeking to cross claim against the plaintiff. The plaintiff has not pleaded a cause of action against the company nor does it seek any judgment or orders against it. 5 Part 6 of the Supreme Court Rules (SCR) refers to cross claims. Part 6 r 6 provides: