Westpac Banking Corporation v Daniel Ivan Cvitanovic in his capacity as the Trustee of the Bankrupt Estate of David Mark Kenneth Rich [2013] NSWSC 1759

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Daniel Ivan Cvitanovic in his capacity as the Trustee of the Bankrupt Estate of David Mark Kenneth Rich [2013] NSWSC 1759 Hearing dates: 7 November 2013 Decision date: 02 December 2013 Before: Bellew J Decision: 1. The amended notice of motion filed on 7 November 2013 is dismissed. 2. I stand the matter over for further directions before me on 6 December 2013 at 9.30 am. 3. I will hear the parties on the question of costs. Catchwords: PRACTICE AND PROCEDURE - notice of motion seeking an order that the applicant be joined as a defendant - where proceedings for possession of property brought by the plaintiff against trustee of bankrupt estate - where applicant the former wife of the bankrupt - where the bankrupt was the sole registered proprietor of the property over which mortgages were held - where applicant not a registered proprietor of the property - where applicant not a party to the relevant mortgages over the property - where no orders sought by the plaintiff against the applicant - where interest of the applicant in the property an equitable interest only - whether applicant able to establish an arguable defence to the claim for possession Legislation Cited: Bankruptcy Act 1966 (Cth) Contracts Review Act 1980 NSW Real Property Act 1900 NSW Uniform Civil Procedure Rules Cases Cited: Cuzeno RVM Pty Limited v Overton Investments [2002] NSWSC 88 Dey v Victoria Railways Commissioners (1949) 78 CLR 62 Dobbs v National Bank of Australasia Limited (1935) 53 CLR 643 Estoril Investments Pty Limited v Westpac Banking Corporation (1993) 6 BPR 13, 146 First v Byrne 172 AM LR 1072 (Iowa Supreme Court 1947) General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Hammond v JP Morgan Trust Australia Limited [2012] NSWCA 261 Hammond v JP Morgan Trust Australia Limited [2012] NSWCA 295 John Alexander's Clubs Pty Limited v White City Tennis Club [2010] HCA 19; (2010) 241 CLR 1 Monroe County Bank v Qualls 125 SO 615 (1929) (ALA) News Limited v Australian Rugby Football League Limited [1996] FCA 870; (1996) 64 FCR 410 Permanent Trustee Limited v Gulf Import and Export Co. [2008] VSC 162 Perpetual Trustee Limited v Moussa [2013] NSWSC 131 Thomas v Silvia (sub nom Modular Design Group Pty Limited v CDG Canberra Pty Limited) (1994) 35 NSWLR 96 Vandervell Trustees Limited v White [1971] AC 912 Category: Principal judgment Parties: Westpac Banking Corporation - Plaintiff/Respondent