Bank of Queensland Ltd v Tsakmakis [2013] NSWSC 164

Supreme Court New South Wales

Medium Neutral Citation: Bank of Queensland Ltd v Tsakmakis [2013] NSWSC 164 Hearing dates: 25 February - 1 March 2013 Decision date: 06 March 2013 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Plaintiff entitled to judgment against third defendant for amount owed to it and for possession of property Catchwords: BANKING - commercial loan facility - default - claim for possession - alleged breach of duty by bank to customer Category: Principal judgment Parties: Bank of Queensland Limited (plaintiff / cross-defendant) George Tsakmakis (first defendant / first cross-claimant) Demmi Jim Spyros Tsakmakis (second defendant / second cross-claimant) Constantine Tsakmakis (third defendant / third cross-claimant) Representation: Counsel: J M White (plaintiff / cross-defendant) D Reid (defendants / cross-claimants) Solicitors: HWL Ebsworth Lawyers (plaintiff / cross-defendant) Emmaus Legal (defendants / cross-claimants) File Number(s): SC 2010/69993 Publication restriction: Nil

Judgment

Introduction 1The issue in these proceedings is whether Bank of Queensland Limited ("the Bank") is entitled to recover from the defendants: - (1)money allegedly owing to it under a commercial facility executed by each of the defendants; and (2)possession of a property in Hill Street, Tweed Heads ("the Property") pursuant to a first registered mortgage. 2The defendants are the registered proprietors of the Property. 3The first and second defendants are the sons of the third defendant. 4On the fourth day of the hearing, the proceedings between the Bank and the first and second defendants were settled. Those defendants consented to judgment for possession of the Property in favour of the Bank. Various consequential orders were made. Otherwise, the Bank's proceedings, and cross claims made by those defendants against the Bank, were dismissed. 5What remains for consideration is the Bank's claim against the third defendant, Mr Constantine Tsakmakis ("Mr Tsakmakis"). 6In its case in chief, the Bank satisfied the requirements to obtain orders for possession and judgment against Mr Tsakmakis. As Mr White, who appeared for the Bank, submitted, all forensic inquiry in the case was directed to the cross-claim brought by Mr Tsakmakis against the Bank. 7In the course of the trial, Ms Reid, who appeared for the defendants, confined the case put on behalf of the defendants. By the time of final submissions, after the settlement between the Bank and the first and second defendants, the case put by Ms Reid on behalf of Mr Tsakmakis was confined to the 6 issues outlined below, several of which were closely related.