Bank of Queensland v Fitzgerald [2014] NSWSC 1599

Supreme Court New South Wales

Medium Neutral Citation: Bank of Queensland v Fitzgerald [2014] NSWSC 1599 Hearing dates: 10.11.14 Decision date: 10 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The plaintiff's application for summary judgment is dismissed. (2)I order the plaintiff to pay the defendants costs of and incidental to the application for summary judgment after they have been assessed or agreed. (3)I list the matter for directions before the Common Law Case Management Registrar at 9am on Tuesday, 18 November 2014. Catchwords: PROPERTY LAW - writ of possession - summary judgment - where defendant refinanced loan - whether plaintiff entitled to summary judgment for portion of the loan amount - subrogation - whether refinance led to subrogation in the event mortgagee's title infected by claim under Contracts Review Act Legislation Cited: Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Burston Finance Limited v Speirway Limited [1974] 1 WLR 1648 Cochrane v Cochrane [1985] 3 NSWLR 403 First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Highland v Exception Holdings Pty Limited (in liq) (2006) 60 ACSR 223 National Australia Bank Limited v Thirup [2011] NSWSC 911 Registrar General v Gill (NSWCA, Gleeson CJ, Mahoney and Priestley JJA, 16 August 1994, unreported, BC9402892) State of New South Wales v Williams [2014] NSWCA 177 Category: Interlocutory applications Parties: Bank of Queensland Limited (Plaintiff) Brian William Fitzgerald (Defendant) Representation: P Jammy (Plaintiff) A G Martin (Defendant)