Bank of Western Australia v Ellis J Enterprises Pty Ltd [2012] NSWSC 313

Supreme Court New South Wales

Medium Neutral Citation: Bank of Western Australia v Ellis J Enterprises Pty Ltd [2012] NSWSC 313 Hearing dates: 13, 14 & 15 December 2011, 8, 9 & 10 February 2012 Decision date: 05 April 2012 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The further amended cross claim filed 13 July 2011 is dismissed. (2) It is adjudged that the plaintiff have possession of the whole of the land in folio identifiers X/XXXX and X/XXXX situated at Wentworth Falls in the State of New South Wales respectively. (3) The plaintiff is to bring in short minutes in relation to the amount outstanding on the judgment debt. (4) The sixth defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (5) I will hear short submissions on the issue of a writ of possession and the date of its issue. Catchwords: DISMISS CROSS CLAIM - possession of property in consequence of default - whether knowingly acted - whether relief under Contracts Review Act 1980, unconscionable conduct or wife's equity principle Legislation Cited: Contracts Review Act 1980 Cases Cited: Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 Burt v ANZ Banking Group Ltd (1994) ATPR 46-123 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 Fabre v Arenales (1992) 27 NSWLR 437 Fast Fix Loan Pty Ltd v Maldenko Samardzic & Anor [2011] NSWCA 260 Garcia v National Australian Bank [1998] HCA 48; (1998) 194 CLR 395 Hurley v McDonald' s Australia Ltd [1999] FCA 1728; (2000) ATPR 41-741 Jones v Dunkel (1959) 101 CLR 298 Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 Permanent Trustee Co Ltd v Elkofairi [2001] NSWSC 1113 Riz v Perpetual Trustee Australia [2007] NSWSC 1153 [2008] Spina v Permanent Custodians Ltd [2009] NSWCA 206 Texts Cited: Mathew Bransgrove et at, The Essential Guide to Mortgage Law in New South Wales, 1st ed (2008) LexisNexis Butterworths Category: Principal judgment Parties: Bank of Western Australia Limited (Plaintiff) Christine Nassif (Sixth Defendant) Representation: P Bellamy (Plaintiff) DC Eardley (Sixth Defendant) Gadens Lawyers (Plaintiff) Downeys Lawyers (Sixth Defendant) File Number(s): 2009/295874