Bendigo and Adelaide Bank Limited v Tombs and Anor [2010] NSWSC 1427

New South Wales Supreme Court

CITATION : Bendigo and Adelaide Bank Limited v Tombs and Anor [2010] NSWSC 1427

HEARING DATE(S) : 30 November 2010

JUDGMENT DATE : 3 December 2010

JUDGMENT OF : Johnson J at 1

1. Judgment is given for the Plaintiff for possession of the land comprised in Folio Identifier 131/527739 located at 18 Lemon Tree Street, Wyoming, New South Wales, (hereinafter referred to as "the land"). 2. The Plaintiff is granted leave to issue a writ of possession of the land forthwith. 3. Judgment is given for the Plaintiff against the Defendants in the sum of $264,231.95 being the principal and interest calculated to today, 3 December 2010. DECISION : 4. Pursuant to s.101 Civil Procedure Act 2005 the Defendants are to pay interest from the date of judgment on the amount of $264,231.95 to be calculated daily in accordance with the provisions for the payment of interest under the Home Loan Contract entered into on 5 December 2003, on so much money as is from time to time unpaid. 5. The First Defendant's Notice of Motion filed on 13 October 2010 is dismissed. 6. The document styled "Reply and Defence and Cross-Claim" filed in the Registry on 18 November 2010 by the First Defendant is rejected pursuant to Rule 4.10(4) Uniform Civil Procedure Rules 2005. 7. The Defendants are to pay the Plaintiff's costs of the proceedings as agreed or assessed.

CATCHWORDS : CONTRACTS - claim by mortgagee for possession of land and monetary judgment following mortgage default - application by Plaintiff for summary judgment and for summary dismissal of Cross-Claim - service of notices under s.57(2)(b) Real Property Act 1900 - reliance by Defendants upon alleged waiver, estoppel and frustration - summary judgment granted - cross-claim summarily dismissed