Westpac Banking Corporation v Kekatos [2014] NSWSC 1802

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Kekatos [2014] NSWSC 1802 Hearing dates: 22 September 2014 Decision date: 19 December 2014 Jurisdiction: Common Law Before: Hamill J Decision: 1) Judgment for the plaintiff against the third defendant in the sum of $19,326,288.75. 2) The third defendant is to pay the plaintiff's costs of the proceedings and the costs of and incidental to the notice of motion. 3) The application for summary judgment against the first defendant is refused. 4) The application for an order for possession of land in folio identifier 5/16538 is refused. 5) The application to strike out the amended defence is refused. 6) The application to strike out the first defendant's amended cross-claim is refused. 7) The first defendant has leave to file a further amended grounds of defence in the form filed in court on 22 September 2014 and marked exhibit A2 on the motion. 8) The first defendant is to pay the plaintiff's costs of and incidental to the notice of motion. Catchwords: CIVIL LAW - summary judgment - judgment for possession of land - where loan used to discharge pre-existing mortgage - liability for principal sum - right of mortgagee to possession - where borrower disputes validity of original mortgage Legislation Cited: Competition and Consumer Act 2010 (Cth) Schedule 2-The Australian Consumer Law Contracts Review Act 1980 (NSW) Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ANZ v Fink [2013] NSWSC 1781 Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Bank of Western Australia v Tannous [2010] NSWSC 1319 Collier v Lancer (No 2) [2013] NSWCA 186 Collier v Moreland Finance Corporation (1989) 6 BPR 13, 337; [1989] ANZ ConvR 515 Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Inglis v Commonwealth Trading Bank [1972] HCA 74; 126 CLR 161 Nibar Investments v Manikad Pty Ltd [2014] NSWSC 920 Simmons v Henwood [2013] NSWCA 184 Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 St George Bank Ltd v Trimarchi [2004] NSWCA 120 State of New South Wales v Williams [2014] NSWCA 177 Wilby v St George Bank [2001] SASC 388; 80 SASR 404 Category: Interlocutory applications Parties: Westpac Banking Corporation (Plaintiff) Vicki Kekatos (First Defendant) Bronte Properties Pty Limited ACN 127 369 359 (Second Defendant) Jerry Kekatos(Third Defendant) Representation: Counsel: P Reynolds (Plaintiff) Rodgers (First Defendant) A Chee (Third Defendant) Solicitors: Gadens Lawyers (Plaintiff) Ronayne Lawyers (First Defendant) Dib Lawyers (Third Defendant) File Number(s): 2013/370509 Publication restriction: Nil