Commonwealth Bank of Australia v Anna Maria Crowe [2004] NSWSC 330

New South Wales Supreme Court

CITATION : Commonwealth Bank of Australia v Anna Maria Crowe [2004] NSWSC 330 HEARING DATE(S) : 10/03/04,11/03/04,12/03/04 JUDGMENT DATE : 30 April 2004

JUDGMENT OF : James J at 1 DECISION : Plaintiff entitled to succeed - making of final orders deferred

CATCHWORDS : Default on mortgage - claim for possession by plaintiff bank - whether defendant can resist claim under principles in - Amadio - Yerkey v Jones - Contracts Review Act Contracts Review Act LEGISLATION CITED : Fair Trading Act Trade Practices Act Commercial Bank of Australia Limited v Amadio (1982-1983) 151 CLR 447 Elkofairi v Permanent Trustee Company Limited [2002] NSWCA 413 CASES CITED : Garcia v National Australia Bank Limited (1998) 194 CLR 395 Kings North Trust v Bell (1986) 1 WLR 119 Teachers Health Investments Pty Limited v Wynne (1996) ASC 56-356 Yerkey v Jones (1938-1939) 63 CLR 649 PARTIES : Commonwealth Bank of Australia v Anna Maria Crowe FILE NUMBER(S) : SC 10136/2003 COUNSEL : M B J Lee - Plaintiff G P McNally - defendant SOLICITORS : Cater & Blumer - Plaintiff Corrs Chambers Westgarth

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 30 April 2004

10136/03 COMMONWEALTH BANK OF AUSTRALIA v ANNA MARIA CROWE & 1 Ors

JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff the Commonwealth Bank of Australia sued two defendants Anna Maria Crowe ("Mrs Crowe") and Darren Neil Crowe ("Mr Crowe"), Mrs Crowe's estranged husband. 2 The Commonwealth Bank of Australia sued Mrs Crowe and Mr Crowe, as being the successor to the State Bank of New South Wales Limited by virtue of s 22 of the Financial Sector (Transfers of Business) Act 1999 (Commonwealth). In the proceedings there was no dispute that the Commonwealth Bank of Australia was the successor to the State Bank of New South Wales and in this judgment I will use the expression "the Bank" to refer to either the State Bank of New South Wales or to the Commonwealth Bank of Australia. 3 In the proceedings the Bank claimed judgment for possession of the land in Certificate of Title Folio identifier No. 4/91/758476 known as 84 Noorilla Street, Griffith ("the property" or "the house property") and judgment for an amount alleged to be owing to the Bank by Mr and Mrs Crowe. The claim for possession of the property was based on default having been made under a registered mortgage dated 6 July 1993 granted by Mrs Crowe to the Bank over the property of which she was the sole owner ("the mortgage"). 4 A defence and a cross-claim were filed on behalf of Mrs Crowe. At the hearing there was no dispute that Mrs Crowe had granted the mortgage over the property, that there had been default under the mortgage and that the Bank had taken the appropriate procedural steps so as to be entitled to possession of the property. The issues which were argued at the hearing were issues which were raised by Mrs Crowe's cross-claim, namely whether she could successfully resist the Bank's claims (1) under the principles stated in Yerkey v Jones (1938-1939) 63 CLR 649 (2) under the principles stated in Commercial Bank of Australia Limited v Amadio (1982-1983) 151 CLR 447 ("Amadio") relating to unconscionable transactions or (3) under the provisions of the Contracts Review Act. Claims under the Trade Practices Act or the Fair Trading Act which were pleaded in the cross-claim were not pressed at the hearing. 5 The second defendant Mr Crowe did not defend the proceedings. Cross-claims by Mrs Crowe against Mr Crowe, a company called Darkcm Pty Limited ("Darkcm") and another company called RKCM Harvesters Pty Limited, which was a company associated with Mr Crowe, were not defended. 6 The evidence adduced in the proceedings consisted of affidavits, oral evidence and documentary exhibits. 7 The affidavits that were read were affidavits by a bank officer Mr Lee, who gave formal evidence in support of the Bank's claims, which was not disputed; by Mrs Crowe in support of her cross-claims; by three solicitors who witnessed the execution of documents by Mrs Crowe (and whose affidavits were filed on behalf of the Bank), namely Mr Lancaster who witnessed the execution of the mortgage on 6 July 1993, Mr Del Gigante who witnessed the execution of documents on 7 October 1994 and Mr Davidge who witnessed the execution of documents on 31 May 2000; and by Mrs Crowe in reply to the affidavits filed on behalf of the Bank. 8 Oral evidence was given at the hearing by Mrs Crowe, Mr Lancaster, Mr Del Gigante and Mr Davidge. 9 The principal documentary evidence was a large bundle described as the Bank's "tender bundle", which contained copies of the Bank's records relating to Mr Crowe, Mrs Crowe and Darkcm. The documentary evidence also included a transcript of proceedings in the District Court on 18 October 1999, when Mr Crowe was sentenced for a criminal offence.