Bank of China v Guo [2007] NSWSC 1337

New South Wales Supreme Court

CITATION : Bank of China v Guo [2007] NSWSC 1337

HEARING DATE(S) : 22/11/07

JUDGMENT DATE : 26 November 2007

JUDGMENT OF : Bell J at 1

DECISION : 1. Strike out the defence filed on 20 August 2007; 2. Judgment for the plaintiff for possession of the properties being units 2608, 2707 and 2805 348-354 Sussex Street, Haymarket, Sydney and being Folio Identifiers 260/SP57702, 266/SP57702, 271/SP57702, 411/SP57702, 414/SP57702, 446/SP57702 and 447/SP57702 (the "properties"); 3. Leave to the plaintiff to issue a writ for possession of the properties; 4. The defendant is to pay the plaintiff's costs as agreed or assessed

CATCHWORDS : Application for summary judgment

Conveyancing Act 1919 Criminal Appeal Act 1912 LEGISLATION CITED : Landlord and Tenant Amendment Act 1948 Real Property Act 1900 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005

CASES CITED : General Steel Industries Inc v Commissioner for railways (NSW) (1964) 112 CLR 125

PARTIES : Bank of China (Plaintiff) Yuejin Guo (Defendant)

FILE NUMBER(S) : SC 2007/12101

COUNSEL : C.R.C. Newlinds SC (Plaintiff) R. W. Killalea (Defendant)

SOLICITORS : Websters Solicitors (Plaintiff) Yuejin Gou (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

BELL J

Monday 26 November 2007

2007/12101 Bank of China Limited (ABN 29 002 929 955) v Yuejin Guo

JUDGMENT 1 BELL J: By notice of motion filed on 28 August 2007 the plaintiff claims an order striking out the whole of the defence as disclosing no reasonable defence under Part 14, r 14.28 of the Uniform Civil Procedure Rules 2005 (the UCPR) and judgment for possession of units 2608, 2707 and 2805 348-354 Sussex Street, Haymarket, Sydney and being Folio Identifiers 260/SP57702, 266/SP57702, 271/SP57702, 411/SP57702, 414/SP57702, 446/SP57702 and 447/SP57702 (the "properties"). 2 Mr Newlinds SC, who appeared for the plaintiff, read the affidavits of Godwin Chin, sworn 28 August 2007, Stephen Roy Webster, sworn 22 November 2007 and John Timmins Dorahy. Mr Dorahy's affidavit concerns the date on which the mortgage was executed, in light of a concession made by Mr Killalea, who appeared for the defendant, it does not require further consideration. 3 The statement of claim was filed on 27 April 2007 and claims judgment for possession of the properties under a mortgage (No. AC812744T "the mortgage") by which the defendant covenanted to pay to the plaintiff all moneys, all interest and charges pursuant to, or purporting to be pursuant to, a deed of settlement and release between a number of parties including the defendant and the plaintiff dated 29 September 2006 (the deed of settlement). The plaintiff pleads the defendant's acknowledgment in the deed of settlement of the sums of AUD$3,754,322.54 and USD$1,485,895.51 as owing by him to it as at 18 September 2006 with interest accruing daily. 4 The plaintiff pleads default in the performance of the covenants contained in the mortgage for the repayment of the amounts owing to the plaintiff. 5 Before turning to the defence I will refer to the history of dealings between the plaintiff and the defendant that is not in issue. 6 Proceedings were brought by the plaintiff in the Equity Division of the Court (Proceedings 4958/06) against the defendant and three other parties. These proceedings were settled on the terms set out in the deed of settlement (Ex "A" pp108-120). 7 The deed of settlement contained the following acknowledgment: 2.1 Guo acknowledges that he is indebted to the Bank for the Moneys owed and that the Bank is entitled to be registered as first mortgagee over the Units as security for the moneys owed in addition to any other securities including the Guarantee. 2.2 The defendants agree and acknowledge that the Bank is entitled to and consents to the orders set out in the Short Minutes of Order and the Bank shall file the Executed Short Minutes within seven (7) days of receipt.