NSW Caselaw
New South Wales Supreme Court
CITATION : Commonwealth Bank of Australia v Saracen Holdings Pty Ltd [2010] NSWSC 541 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 17 May 2010 JUDGMENT OF : Hammerschlag J
EX TEMPORE JUDGMENT DATE : 17 May 2010
DECISION : Declaratory relief and order for specific performance
CATCHWORDS : CONTRACT – remedies – specific performance – where the defendant agreed with the plaintiff to grant a mortgage over certain property owned by it in substitution for the discharge by the plaintiff of a mortgage over other property – the agreement was not in writing and there was no memorandum or note by the defendant of it as contemplated by s 54A(1) of the Conveyancing Act 1919 (NSW) – the plaintiff discharged the first mortgage but the defendant never gave it the second one – whether the agreement should be specifically performed on the basis that part performance occurred
LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Conveyancing Act 1919 (NSW)
CASES CITED : Khoury & Anor v Khouri (2006) 66 NSWLR 241 Takemura v National Australia Bank Ltd [2003] NSWSC 339
TEXTS CITED : Meagher, Gummow & Lehane's Equity Doctrines & Remedies 4th ed [12:100]
PARTIES : Commonwealth Bank of Australia v Saracen Holdings Pty Ltd
FILE NUMBER(S) : SC 2010/40916
COUNSEL : D.A. McLure [Plaintiff] Self-represented by director Mr N Elali, with leave [Defendant]
SOLICITORS : Commonwealth Bank of Australia Legal Services [Plaintiff]
- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST
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