Commonwealth Bank of Australia v Dimitrovski [2013] NSWSC 812

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Dimitrovski [2013] NSWSC 812 Hearing dates: 17, 18 & 19 June 2013 Decision date: 28 August 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Judgment for the Plaintiff for possession of the land in folio identifier B/346642 known as 2 Jones Lane, Thirroul; (2) Judgment for the Plaintiff in the sum of $2,041,997.37. (3) Leave to the Plaintiff to issue a writ of possession such writ not to be executed prior to 23 October 2013. (4) Any application to vary the date for execution of the writ is to be made to me no later than 11 September 2013 on 2 days' notice. Catchwords: MORTGAGES - security for loan - refinancing - whether mortgagee authorised to payout prior mortgage - whether loan moneys secured by mortgage - whether mortgagor obtained benefit of loan. PROCEDURE - admissions in defence - amended defence purporting to withdraw admissions - whether leave should be granted - no evidence of circumstances of making admission. PROCEDURE - amendment - application to amend on second day of hearing - failure of defendant to avail himself of leave to amend on prior occasions - no explanation for failure to amend earlier. Legislation Cited: Australian Securities And Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 Contracts Review Act 1980 Trade Practices Act 1974 (Cth) Cases Cited: Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Full Court of Supreme Court of Victoria, 8 April, 1988, unreported) Commonwealth Bank of Australia v Hamilton [2012] NSWSC 242 Commonwealth Bank v Hannaford (No 2) [2013] NSWSC 574 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, Santow J, 16 October 1996, unreported,) Maile v Rafiq [2005] NSWCA 410 Perpetual Ltd v Costa [2007] NSWSC 1093 Taleb v National Australia Bank Ltd [2011] NSWSC 1562; (2011) 82 NSWLR 489 Texts Cited: Fisher & Lightwood's Law of Mortgage, 2nd Australian Ed, (2005) Lexis Nexis Butterworths Category: Principal judgment Parties: Commonwealth Bank of Australia (Plaintiff) George Dimitrovski (Defendant) Representation: Counsel: P Newton (Plaintiff) P Wallis (Defendant) Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2012/44255