Bidmonta Pty Limited v Debra Kay McMillan [2011] NSWSC 202

Supreme Court New South Wales

Medium Neutral Citation: Bidmonta Pty Limited v Debra Kay McMillan [2011] NSWSC 202 Hearing dates: 28 February 2011 Decision date: 29 March 2011 Before: Rothman J Decision: By consent, the Court orders: 1. Judgment in favour of the plaintiff as against the second defendant in the sum of $160,180.92 representing $127,000 together with $33,180.92 by way of interest from 1 May 2008 to 28 February 2011 at the Civil Procedure Act rates. 2. Order that within 28 days of the making of these orders, the plaintiff provide to the second defendant an executed withdrawal of caveat in relation to the property situated at 565 Ebenezer Road, Ebenezer (comprised in folio identifier 11/227211). 3. Order that the statement of claim is otherwise dismissed as against the second defendant. 4. Order that that the cross-claim filed by the second defendant is dismissed. 5. Order that in relation to the proceedings between the plaintiff and second defendant and without prejudice to any order for costs previously made, that the second defendant pay the plaintiff's costs as agreed or assessed on the ordinary basis up to 8 February 2011. 6. Make no order as to costs of the second defendant's cross-claim to the intent that the plaintiff and second defendant pay their own costs of the cross-claim. 7. Note the agreement between the plaintiff and the second defendant that the proceeds of the Westpac bank account number 032*** ***450 in the name "Taylor & Scott and Legal Ease Lawyers Pty Ltd ITF David Robert McMillan & Bidmonta Pty Limited Controlled Monies Account", presently holding the amount of $66,712.37 together with interest accumulated, shall be used to pay in part the judgment referred to in paragraph one above in reduction of the judgment debt referred to in paragraph one, such payments to be made within 14 days of today's date. 8. Order that the plaintiff and second defendant shall sign all documents necessary in order to effect the closure of the Westpac bank account 032*** ***450 as referred to in paragraph 7 above and disburse the monies to the plaintiff. 9. Note the agreement of the plaintiff and second defendant that they will execute a deed of mutual release releasing one another from all claims that they may have had against the other arising from or relating to the mortgage and guarantee which are the subject of these proceedings other than the right to enforce these orders and agreements, and the plaintiff's right to make application in the proceedings for the second defendant to indemnify the plaintiff for costs payable by the plaintiff to the first defendant. The Court further orders: 10. The second defendant pay the plaintiff $40,000, being the plaintiff's liability for the costs of the first defendant. 11. Otherwise the proceedings are dismissed. Catchwords: COSTS - settlement of proceedings against all parties - unauthorised signature on loan - Bullock orders sought - no necessity for mini-trial - orders granted; PRACTICE - application for indication by Court of whether orders created dependent or independent obligations - advisory opinion - issue not determined Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Automatic Fire Sprinklers Pty Limited v Watson [1946] HCA 25; (1946) 72 CLR 435 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32 Gould v Vaggelas [1985] HCA 85; (1984) 157 CLR 215 Gribbles Pathology Pty Ltd v Health Insurance Commission, Commonwealth of Australia & Graham Grayson [1997] FCA 1414; (1997) 80 FCR 284 Moschi v Lep Air Services Ltd; Lep Air Services Ltd v Rolloswin [1973] AC 331 Newcombe v Newcombe (1934) 34 SR (NSW) 446 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106; (2000) 179 ALR 664 Category: Consequential orders Parties: Bidmonta Pty Limited (Plaintiff) Debra Kay McMillan (First Defendant) David Robert McMillan (Second Defendant) Bobbette Lee McMillan (Third Defendant) Commonwealth Bank of Australia (Fourth Defendant) Perpetual Limited (Fifth Defendant) Perpetual Trustee Victoria Limited (Sixth Defendant) Representation: Counsel: J Turnbull (Plaintiff) E Picker (First Defendant) J Armfield (Second Defendant) K Fraser (Sixth Defendant) Solicitors: Ronayne Lawyers (Plaintiff) Peter Dawson & Associates (First Defendant) Taylor & Scott Lawyers (Second Defendant) Kemp Strang Lawyers (Sixth Defendant) File Number(s): 2009/292573