C2C Developments Pty Ltd v Commonwealth Bank of Australia [2012] NSWSC 1162

Supreme Court New South Wales

Medium Neutral Citation: C2C Developments Pty Ltd v Commonwealth Bank of Australia [2012] NSWSC 1162 Hearing dates: 25 September 2012 Decision date: 11 October 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1) order that the proceedings be dismissed and that the plaintiff pay the defendant's costs of the proceedings Catchwords: MORTGAGES - mortgages and charges generally - accounts - duty to account after mortgagee exercises power of sale - duty to account dependant on surplus - fact of surplus not pleaded - summary dismissal of proceedings Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Residential Housing Corporation v Esber [2011] NSWCA 25 Tsatsaulis & Anor v Trigamist Holdings Pty Ltd [2000] NSWSC 900 Williams v Spautz [1992] HCA 34; [1992] 174 CLR 509 Texts Cited: R Meagher, D Heydon, M Leeming, Equity Doctrines & Remedies, 4th ed (2002) E Tyler, P Young, Clyde Croft, Fisher and Lightwood's Law of Mortgage, 2nd ed (2005) P Young AO, Clyde Craft, Megan Louise Smith, On Equity (2009) Category: Principal judgment Parties: C2C Developments Pty Ltd (Plaintiff) Commonwealth Bank of Australia (Defendant) Representation: M S Jacobs QC (Plaintiff) A Kaufmann (Defendant) Platinum Lawyers (Plaintiff) Gadens Lawyers (Defendant) File Number(s): 2012/00226800

Judgment 1This is the hearing of the defendant's notice of motion filed 24 August 2012 in which they seek that the statement of claim filed on 20 July 2012 be struck out and at the proceedings be dismissed. 2Before dealing with the history of the matter, it is useful to note that details of the statement of claim and the relief sought, in short, the statement of claim seeks an accounting of the defendant bank's action in respect of the sales of four (4) properties. The pleadings are in these terms: 1.At all relevant times hereto, the Plaintiff was the owner of the undermentioned properties: (a)the land comprised in folio identifier 72/817399 situated at and known as 43 lluka Circuit, Taree in the State of New South Wales; (b)the land comprised in folio identifier 322/807761 situated at and known as 9 Manning River Drive, Taree (also known as Lot 322 Manning Drive, Taree) in the State of New South Wales; and (c)the land comprised in folio identifier 560/1082760 situated at and known as 2 Duroby Street, Harrington (also known as Lot 560 Cnr Lazzarina & Duroby Drive, Harrington Waters) in the State of New South Wales. 2.During the course of 2010, the Plaintiff agreed to give to the Defendant possession of the properties as chargee/mortgagee in possession pursuant to consent orders made by this Honourable Court on 28 September 2010. 3.The Defendant duly took possession of the aforesaid properties and sold them and retained the proceeds. 4.Notwithstanding demand, the Defendant has failed and or refused to account to the Plaintiff for the aforesaid sales.