Westpac Banking Corporation v Mark Baranov & Ors [2002] NSWSC 1029

New South Wales Supreme Court

CITATION : Westpac Banking Corporation v Mark Baranov & Ors [2002] NSWSC 1029 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11156 of 2002 HEARING DATE(S) : 29 October 2002 JUDGMENT DATE : 1 November 2002

Westpac Banking Corporation (Trading as Bank of Melbourne) (Plaintiff) v Mark Baranov (First Defendant) PARTIES : Antonia Margaret Formica (Second Defendant) City Hub Development Pty Limited (Third Defendant) Barancon Pty Limited (Fourth Defendant) Anthony Puharich, Anita Puharich, Victor Puharich and Stephanie Puharich (Fifth Defendant) JUDGMENT OF : Master Malpass

Mr D R Pritchard (Plaintiff) COUNSEL : Mr L J Aitken (First, Second, Third and Fourth Defendants) N/A (Fifth Defendant) Corrs Chambers Westgarth (Plaintiff) SOLICITORS : Morgan Lewis Alter (First, Second, Third and Fourth Defendants) Conway MacCallum (Fifth defendant) CATCHWORDS : Monetary judgment - summary relief - was memorandum incorporated into mortgage and other defences and cross-claims - certificate and quantum of judgment. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See Paragraph 19.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

FRIDAY 1 NOVEMBER 2002

11156 of 2002 Westpac Banking Corporation(Trading as Bank of Melbourne) v Mark Baranov & Ors

JUDGMENT 1 Master: The proceedings were commenced by Statement of Claim filed on 24 April 2002. The first and second defendants are the registered proprietors of certain land known as 3 Arabella Street, Lane Cove (the property). They have been described as partners. The first defendant has been described as the principal of the third and fourth defendant. The fourth defendant is now a deregistered company. 2 An order made by Registrar Robinson, added the parties which are described as the fifth defendant as parties to the proceedings. These parties have entered into a contract to purchase the property. It appears that these parties may have been erroneously joined as defendants to the proceedings. Presently, they merely play a watching role. 3 In June 2000, the first and second defendants gave a mortgage of the property to National Australia Bank Limited. On 24 September 2000, the third defendant gave a guarantee of the liabilities and obligations of the first defendant. On 6 December 2000, the first and second defendants granted a mortgage over the property in favour of the plaintiff. The earlier mortgage was discharged. On 6 June 2001, the financial accommodation extended to the first and second defendants was increased from $2,100,000 to not exceeding $2,410,000. 4 On 24 September 2001 additional accommodation not exceeding $675,000 was granted to the first and second defendants. This was also expressed to be done on the security available under the mortgage (together with the further security of an unregistered mortgage). 5 It appears that a dispute arose as to interest rates. This led to the first defendant stopping making payments of interest under the mortgage. 6 On 26 July 2002, the plaintiff filed a Notice of Motion. It sought inter alia a judgment in possession for the property and a monetary judgment. The Notice of Motion was specially fixed for hearing on 29 October 2002. At the commencement of the hearing, by consent, summary relief in respect to the claim for possession was granted. As there was dispute as to the claim for the monetary judgment, a hearing of that matter then took place. In relation to it, relief was not being sought against the second and fourth defendants. 7 The plaintiff sought to rely on two affidavits sworn by Mr Busuttil (a bank manager) and a tender of certain documents. Counsel for the defendants objected to paragraph 4 of the affidavit sworn on 28 October 2002 together with the annexed Statement of Account referred to therein (the annexure). He also objected to the admission of the tendered documents. After lengthy argument paragraph 4 (together with the annexure) was allowed to be read and the tender of the documents was rejected. Mr Busuttil had been required to attend for cross-examination. However, ultimately, he was not cross-examined. The defendants rely on an affidavit sworn by the first defendant. He had also been required to attend for cross-examination. Again, ultimately he was not cross-examined. 8 The annexure is dated 28 October 2002 and certifies that from the books and records of the plaintiff, the amount owing under the mortgage, due and payable to it, is $3,326,980. It also certifies that interest continues to accrue on the said amount at the current daily rate of $1,555 per day. 9 The mortgage has been described as being in short form. For present purposes, the relevant provision reads as follows:- "I/we have read a copy of filed memorandum number 5481313 (the 'Memorandum'). It forms part of this mortgage."