Commonwealth Bank of Australia v Bird [2011] NSWSC 586

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Bird [2011] NSWSC 586 Hearing dates: 16 May 2011 Decision date: 20 June 2011 Jurisdiction: Common Law Before: Schmidt J Decision: In the circumstances, it follows that the orders sought by the plaintiff must be made. I order: 1. That the first defendant give the plaintiff possession of the Property. 2. Leave to issue a writ of possession in respect of the Property is granted. 3. In respect of the Complete Home Loan, I order that: (a) the first defendant pay to the plaintiff the sum of $1,049,033.49 together with interest at various rates charged by the plaintiff to customers of the plaintiff on like accounts (compounded monthly) from 1 March 2010 to repayment or judgment, whichever is earlier; and (b) the second defendant pay to the plaintiff the sum of $1,000,000 plus the plaintiff's reasonable expenses of enforcing Guarantee A. 4. In respect of the Investment Home Loan, I order that: (a) the first defendant pay to the plaintiff the sum of $295,454.23 together with interest at various rates charged by the plaintiff to customers of the plaintiff on like accounts (compounded monthly) from 1 March 2010 to repayment or judgment, whichever is earlier; and (b) the second defendant pay to the plaintiff the sum of $280,000 plus the plaintiff's reasonable expenses of enforcing Guarantee B. 5. In respect of the Business Better Loan A, an order that the first defendant pay to the plaintiff the sum of $400,000 together with interest at various rates charged by the plaintiff to customers of the plaintiff on like accounts (compounded monthly) from 1 March 2010 to repayment or judgment, whichever is earlier. 6. In respect of the Business Better Loan B, an order that the first defendant pay to the plaintiff the sum of $184,082.91 together with interest at various rates charged by the plaintiff to customers of the plaintiff on like accounts (compounded monthly) from 1 March 2010 to repayment or judgment, whichever is earlier. 7. In respect of the Overdraft, an order that the first defendant pay to the plaintiff the sum of $294,292.36 together with interest at various rates charged by the plaintiff to customers of the plaintiff on like accounts (compounded monthly) from 1 March 2010 to repayment or judgment, whichever is earlier. 8. An order pursuant to section 101 of the Civil Procedure Act 2005 that interest be payable on any judgment obtained by the plaintiff against the first and second defendants at the prescribed rate or at various rates charged by the plaintiff to customers on like accounts (compounded monthly) from the date of judgment on so much of the money as is from time to time unpaid, whichever is higher. 9. Costs on an indemnity basis. Catchwords: MORTGAGES - mortgagees remedies - possession of property - Farm debt Mediation Act 1994 - whether debt was a farm debt incurred by a farmer for the purpose of a 'farming operation' - farming operation not established