Commonwealth Bank of Australia v Ellis [2001] NSWSC 483

New South Wales Supreme Court

CITATION : Commonwealth Bank of Australia v Ellis [2001] NSWSC 483 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12233/97 HEARING DATE(S) : 05/06/2001, 06/06/2001 JUDGMENT DATE : 6 June 2001

PARTIES : Commonwealth Bank of Australia v Gary Raymond Ellis JUDGMENT OF : Barr J at 1

COUNSEL : Plaintiff: D Ash Defendant: M Hadley SOLICITORS : Plaintiff: Abbott Tout Defendant: Andrew P Quigley & Co DECISION : See paragraph 11.

THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 6 June 2001

12233/97 - Commonwealth Bank of Australia v Gary Raymond Ellis

JUDGMENT 1 HIS HONOUR: In this matter the Commonwealth Bank of Australia moves for orders granting it possession of certain land over which the defendant granted it a mortgage and consequent orders. The matter was called on for hearing yesterday and it became plain that the only real issue in the case was going to be whether the defendant could prove assertions that he made about the general unconscionability of the contract of mortgage and whether he could establish his entitlement to relief under the provisions of the Contracts Review Act 1980. The defendant did not attend the Court yesterday and the Court took the matter as far as it could and dealt formally with affidavits. 2 By the end of yesterday's proceedings it was apparent that the plaintiff had proved all the things that it had to prove in order to entitle it to the relief sought. It was necessary for the defendant to attend for cross-examination on the issues which he raised in his defence and cross-claim. 3 Counsel for the defendant, Mr Hadley, informed the Court yesterday that the defendant, who lives at Coraki in the far north of the State, had been in touch with his legal advisers to inform them that on the way to Sydney for the hearing he had had to stop at Coffs Harbour and seek medical attention for symptoms of dizziness that he was experiencing and which prevented him from driving his car any farther. 4 Mr Hadley informed the Court that the defendant had been advised that his presence at the hearing was necessary and that he could attend today if he took a train which was due to leave Coffs Harbour yesterday afternoon. 5 In the circumstances I thought it appropriate to grant him the adjournment that Mr Hadley sought on his behalf. I adjourned the matter until this morning. 6 The defendant has not attended this morning and there is no evidence to explain his failure to attend. Mr Hadley has informed the Court that he or his solicitor has telephoned the house of the defendant but that there has been no answer to the call and that a person at the Coffs Harbour District Hospital, where Mr Ellis apparently attended yesterday, has been spoken to as well. That person has said that the defendant is no longer at the hospital and a record suggests that although he attended for treatment yesterday he is no longer being attended to by the authorities at that hospital. 7 Mr Hadley has again applied for an adjournment of the matter but I do not think that I ought to grant a further adjournment in the absence of evidence. 8 Mr Hadley has conceded that if he fails in his adjournment application and the Court hears the matter today, the plaintiff is entitled to the orders it seeks. I think that that is a realistic submission. I put aside the evidence that was read yesterday in Mr Ellis's affidavit sworn on 15 September 2000. I am satisfied that the plaintiff has proved its case and is, except in one respect to which I shall shortly refer, entitled to the relief sought. 9 Mr Hadley has asked the Court to incorporate in its judgment some special remark or facility whereby if Mr Ellis finds himself able to attend Court within a reasonable time he may be able to apply to me or to another judge of the Division for an order setting aside the orders which will have to be made in favour of the plaintiff. I do not think that I should make any special remark or provision in that respect, however, because it seems to me that the Rules entitle the defendant to move to set aside the judgment. 10 One of the orders the plaintiff has asked for is costs on a solicitor/client basis. It has not been established to my satisfaction that the circumstances of the case justify that basis or show that there is any agreement between the parties that in the event of the plaintiff in due course recovering a judgment for possession that should be the basis of any costs order. 11 Accordingly, I make the following orders. I order that the defendant give the plaintiff possession of the property in Certificate of Title Folio Identifier 3/816682. I order that the plaintiff have leave to issue a writ of possession forthwith in respect of that property. I direct that the writ lie in the registry for a period of twenty-eight days from today. The cross-claim is dismissed. I order the defendant to pay the costs of the plaintiff of its claim and of the cross-claim on a party-party basis in an amount to be agreed or assessed. **********