CBA v Hurst [1999] NSWSC 827

New South Wales Supreme Court CITATION : CBA v Hurst [1999] NSWSC 827 CURRENT JURISDICTION : Commercial FILE NUMBER(S) : 50124/1994 HEARING DATE(S) : 13 August 1999 JUDGMENT DATE : 18 August 1999

PARTIES : Commonwealth Bank of Australia - Plaintiff Helen Ann Hurst - Sixth Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr M. Walton SC - Plaintiff Mr J.J. Loofs - Sixth Defendant SOLICITORS : Abbott Tout - Plaintiff Weatherly & Bartram - Sixth Defendant CATCHWORDS : DECISION : I order that:-; (a) leave be granted to the plaintiff to issue a Writ with respect to the property referred to in paragraph 3(b) of the judgment entered on 12 October 1998, being the whole of the land contained in Certificate of Title Reference 6/2/758544 and known as Creek Street, Jindera in the State of New South Wales; (b) the sixth defendant pay the plaintiff's costs of the Notice of Motion; (c) the sixth defendant's Cross-Claim stand over for mention to Friday, 20 August 1999

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

WEDNESDAY, 18 AUGUST 1999

50124/1994 - COMMONWEALTH BANK OF AUSTRALIA v HURST & ORS

JUDGMENT

HIS HONOUR:

Introduction 1 On 18 September 1998 the Court ordered that the plaintiff, Commonwealth Bank of Australia, for which Mr M. Walton of Senior Counsel appeared, should, relevantly for present purposes, have judgment against the fifth defendant, Cade Hurst Enterprises Pty Limited, ("Cade Hurst"), for possession, inter alia, of all the land contained in Certificate of Title Reference 6/2/757544 being the land at 79 Creek Street, Jindera in the State of New South Wales, ("the property"). That order flowed from Cade Hurst's having mortgaged the property to the plaintiff by a mortgage, which is dated 9 January 1980, and which is registered on the title. The correct reference to the title is Certificate of Title Reference 6/2/758544, which was corrected pursuant to the slip rule and without objection. 2 By a Notice of Motion filed on 6 July 1999 the plaintiff sought leave to issue a Writ of Execution forthwith to obtain possession of the property and, subject to a matter to which I shall refer in a moment, it is not suggested that the plaintiff is not entitled to that order. 3 By a Notice of Motion filed in Court on 16 July 1999, Mrs Helen Ann Hurst, who was not a party to the original proceedings and for whom Mr J.J. Loofs of Counsel appeared, sought orders that she be granted leave to intervene in these proceedings and be added as the sixth defendant, that the plaintiff's Notice of Motion seeking leave to issue the Writ of Execution be stayed:- "pending the outcome of the proceedings commenced by Helen Ann Hurst in the Family Court of Australia at Melbourne on 11 May 1999 numbered 4881 of 1999",