Commonwealth Bank of Australia v Newhook [2015] NSWSC 41

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Newhook [2015] NSWSC 41 Hearing dates: 24 September 2014 Decision date: 11 February 2015 Jurisdiction: Common Law Before: Button J Decision: (1)Pursuant to Rule 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the plaintiff is granted leave to file and serve a further amended statement of claim in the form annexed to the amended notice of motion of the plaintiff of 24 September 2014. (2)The notice of motion of the plaintiff of 24 September 2014 is otherwise dismissed (3)Pursuant to the provisions of Section 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings numbered 2013/00332480 commenced in the Common Law Division (Possession List) of this Court are transferred to the Family Court of Australia, Newcastle Registry. (4)The notice of motion of the second defendant of 30 May 2014 is otherwise dismissed. (5)The plaintiff must pay the costs of the second defendant of the two motions. Catchwords: CIVIL – Appropriateness of appointment of trustee for sale of real property when interests of tenants in common are subject to possible adjustment in the Family Court – application for transfer of proceedings seeking possession pursuant to a mortgage when proceedings are on foot between two tenants in common in the Family Court and in which mortgagee has been joined as a party Legislation Cited: Civil Procedure Act 2005 (NSW), s 64, s 135 Conveyancing Act 1919 (NSW), s 7 s 66G Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5, s 5(1)(b)(ii) Uniform Civil Procedure Rules 2005 (NSW), r 13.1, r 19.1 Real Property Act 1900 (NSW) Cases Cited: General Steel Industries Inc v Cmr of Railways (NSW) [1964] HCA 69; 112 CLR 125 Reynolds v Medway [2013] NSWSC 206 Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 Category: Principal judgment Parties: Commonwealth Bank of Australia (Plaintiff) William Patricia Newhook (First Defendant) Barbara Sabina Newhook (Second Defendant) Representation: Counsel: R Bellamy (Plaintiff) A D Justice (Second Defendant)