Westpac Banking Corporation v Bickley [2001] NSWSC 756

New South Wales Supreme Court

CITATION : Westpac Banking Corporation v Bickley [2001] NSWSC 756 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10563/01 HEARING DATE(S) : 29 August 2001 JUDGMENT DATE : 3 September 2001

PARTIES : P - Westpac Banking Corporation D - Leslie James Bickley JUDGMENT OF : Master Harrison

COUNSEL : P - G Lucarelli D - R W Cameron SOLICITORS : P - Henry Davis York D - David Geddes CATCHWORDS : Strike out part of defence & cross claim - GST - Frustration LEGISLATION CITED : Real Property Act 1900 (NSW) Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Alanbert Pty Ltd v Butler Pty Ltd [2000] NSWSC 261 Davis Contractors Ltd v Fareham UDC [1956] AC 696 Codelfa Constructions Pty Limited v State Rail Authority of NSW (1982) 149 CLR 337 DECISION : (1) Paragraphs 3, 5, 6, 7 and 8 of the defence are struck out; (2) The cross claim is struck out; (3) The defendant is to pay the plaintiff's costs.

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

3 SEPTEMBER 2001

10563/01 - WESTPAC BANKING CORPORATION v LESLIE JAMES BICKLEY

JUDGMENT (strike out part of defence & cross claim; GST - frustration)

1 MASTER: By notice of motion returnable 17 August 2001 the plaintiff sought orders that the court strike out paragraphs 3, 5, 6, 7 and 8 of the defence and the whole of the cross claim in these proceedings. The plaintiff does not seek to strike out the part of the defence which relates to an alleged agreement. 2 By statement of claim filed on 27 February 2001 the plaintiff alleges that on 12 August 1997 the defendant mortgaged a property at Harbord to the plaintiff. The plaintiff alleges that it made advances and granted accommodation to the defendant and that the defendant is in default of the payment of the principal sum and the interest due on the money secured by the mortgage. The defendant has admitted that he entered into the mortgage. 3 The plaintiff alleges that on 6 December 2000, as the defendant was in arrears of payments due to the plaintiff, they made written demand on the defendant pursuant to s57(2)(b) of the Real Property Act 1900 (NSW). At the date of filing of the statement of claim the defendant continued to owe the amount in arrears. The plaintiff has sought possession of the property and payment of the amount owing under the mortgage.