National Australia Bank Ltd v Savage [2013] NSWSC 1718

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Savage [2013] NSWSC 1718 Hearing dates: 5 November 2013 Decision date: 21 November 2013 Jurisdiction: Common Law Before: Adamson J Decision: As against the first defendant: (1) Judgment for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 39/xxx (formerly 1/xx) and known as xx Byng Street, Orange in the State of New South Wales. (2) Judgment for the possession of the whole of the land comprised in Certificate of Title, Folio Identifier 2/xx (formerly 7/xx) and known as "Willapines" Molong Road, Orange (also known as 'Willawong' Molong Road, Orange) in the State of New South Wales. (3) Leave to issue a writ of possession to enforce the judgment referred to in paragraphs (1) and (2) above. (4) Order the defendant to pay the plaintiff's costs of the proceedings. (5) Direct the plaintiff and the second defendant to inform my Associate by email by 5 pm 25 November 2013 whether it or she, as the case may be, wishes to be heard against the making of orders against the second defendant in the same terms as set out above. If no such notification is made, the orders set out above will be made against the second defendant in chambers. Catchwords: EQUITY -Yerkey v Jones equity - whether wife a volunteer although a co-debtor-requirement of direct and immediate benefit - no evidence of bank's knowledge of use of funds - whether causation relevant to availability of equitable relief when wife still would have signed documents had she known true import Legislation Cited: Bankruptcy Act 1966, s 58, Contracts Review Act 1980 Conveyancing Act 1919, s 66G Oaths Act 1900, s 18 Cases Cited: Agripay Pty Limited v Byrne [2011] QCA 85; [2011] 2 Qd R 501 Bank of Western Australia Limited v Abdul [2012] VSC 222 Bylander International Consortium (Australia) Pty Ltd v Multilink Investments Pty Ltd [2001] NSWCA 53 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 Garcia v National Australia Bank [1998] HCA 48; 194 CLR 395 Sistrom v Urh (1992) 40 FCR 550 State Bank of NSW v Chia [2000] NSWSC 552; 50 NSWLR 587 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Yerkey v Jones [1939] HCA 3; 63 CLR 649 Category: Principal judgment Parties: National Australia Bank Ltd (Plaintiff) Matthew Ronald Savage (First Defendant) Lisa Margaret Savage (Second Defendant) Representation: Counsel: CRC Newlinds SC and DR Sulan (Plaintiff) G Curtin SC and L Jackson (Defendants) Solicitors: Gadens Lawyers (Plaintiff) Riley Gray-Spencer Lawyers (Defendants) File Number(s): 2011/45466 Publication restriction: Nil