National Australia Bank Limited v Thirup and Anor [2011] NSWSC 911

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Thirup and Anor [2011] NSWSC 911 Hearing dates: 29 July 2011, 12 August 2011, 15 August 2011 Decision date: 17 August 2011 Before: Johnson J Decision: (a) Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005 , judgment for the Plaintiff for possession of the whole of the land referred to in Certificate of Title Folio Identifier 37/221083 and known as 74 Gregory Road, Leppington, New South Wales. (b) Leave is granted to the Plaintiff to issue a writ of possession to enforce the judgment for possession referred to above (in (a)). (c) The Plaintiff's application for summary judgment in monetary terms is declined. (d) Pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 , the Cross-Claim is dismissed as against the Registrar General. (e) The Defendants' application for leave to file and serve an Amended Defence and an Amended Statement of Cross-Claim is refused. (f) The Defendants are to pay 80% of the costs of the Plaintiff with respect to the Plaintiff's Notice of Motion filed 29 July 2011. (g) The Defendants are to pay the Plaintiff's costs with respect to the Defendants' Notice of Motion filed 8 April 2011. (h) The Defendants are to pay the Registrar General's costs with respect to the Registrar General's Notice of Motion filed 1 August 2011. (i) The Defendants are to pay the Registrar General's costs with respect to the Defendants' Notice of Motion filed 8 April 2011. (j) The Defendants are to pay the Registrar General's costs with respect to the proceedings which have been dismissed as against the Registrar General. (k) The Defendants are to pay the costs of Mortgage House of Australia Pty Limited trading as Mortgage House with respect to the Defendants' Notice of Motion filed 8 April 2011. (l) The Defendants are to serve upon affected parties, by 31 August 2011 any proposed Amended Defence and proposed Amended Statement of Cross-Claim. (m) The matter is stood over for further directions at 9.30 am on 13 September 2011. (n) Execution of any writ of possession obtained with respect to 74 Gregory Road, Leppington is stayed until 4.00 pm on 13 September 2011. Catchwords: MORTGAGES - claim for possession of land and monetary judgment - mortgage default - application by Plaintiff for summary judgment - fraud exception under s.42 Real Property Act 1900 - subrogation - summary judgment granted for possession of land but not monetary judgment - application for summary dismissal by Registrar General - whether reasonable cause of action for compensable loss under s.129 Real Property Act 1900 - summary dismissal granted - pleading issues - leave to amend Defence and Cross-Claim refused - leave granted to serve further proposed Amended Defence and Amended Cross-Claim Legislation Cited: Real Property Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 Webster v Lampard [1993] HCA 57; 177 CLR 598 Cosmos E-C Commerce Pty Ltd v Bidwell and Associates Pty Ltd [2005] NSWCA 81 Van Den Heuvel v Perpetual Trustees Victoria Limited [2010] NSWCA 171 Schultz v Corwill Properties Pty Limited (1969) 90 WN (Pt1) (NSW) 529 Octapon Pty Limited v Esanda Finance Corporation Limited (Cole J, 3 February 1989, BC8902608) Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 Burston Finance Limited v Speirway Limited [1974] 1 WLR 1649 Highland v Exception Holdings Pty Limited (In Liq) [2006] NSWCA 318; 60 ACSR 223 Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269 MDN Mortgages Pty Limited v Caradonna [2010] NSWSC 1298 Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; 126 CLR 161 Horrobin v Australia and New Zealand Banking Group Limited (1996) 40 NSWLR 89