Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v MLD Financial Services & Management Pty Ltd [2015] NSWSC 1476 Hearing dates: 11 September 2015 Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff for possession of the whole of the land in folio identifier 3/555428 being the land situated at and known as 1390 Illaroo Road, Illaroo (also known as 1390 Illaroo Road, Camberwarra West and also known as 1390 Illaroo Road, Tapitallee) in the State of New South Wales. 2. The First Defendant is to pay the Plaintiff's costs. Catchwords: REAL PROPERTY – mortgages – possession of land – summary judgment sought for possession – whether any defence to claim for possession – dispute regarding amount owing is no defence to claim – claim by mortgagor that mortgagee's breaches of duty prevented payments due under loan agreement and mortgage – mortgagee's acts post-dated entry into loan agreement and mortgage – whether such claim an equitable set-off – whether claim impeached mortgagee's title –contractual provisions preventing the raising of a set-off until loan repaid in full – effect of such provisions – no set-off available – no defence to plaintiff's claim EQUITY – equitable set-off – what amounts to – whether mortgagee's title impeached by subsequent wrongful acts of mortgagor – no set-off available Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian & New Zealand Banking Group v RQA Accountants Pty Ltd & ors [2013] NSWSC 165 Beasley v Darcy (1800) 2 Sch. & Lef. 403 British Anzani (Felixstowe) Ltd v International Marine Management (U.K.) Ltd [1980] 1 QB 137 GE Capital Australia v Davis [2002] NSWSC 1146 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 James v Commonwealth Bank of Australia (1992) 37 FCR 445 Lord v Direct Acceptance Corporation Ltd (Receiver And Manager Appointed) (In Liq) (1993) 32 NSWLR 362 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 National Australia Bank Ltd v C & O Voukidis Pty Ltd [2014] NSWSC 384 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 O'Mahony v Dickson (1805) 2 Sch. & Lef. 400 RHG Mortgage Securities v BNY Trust [2009] NSWSC 1011 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Westpac Banking Corporation v Corry and Anor [2011] NSWSC 1014 Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th Edition 2015 Lexis Nexis) Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) MLD Financial Services & Management Pty Ltd (First Defendant) Denese Lesley Macauley (Second Defendant) Representation: Counsel: T Fishburn (Plaintiff) G M Colman (First & Second Defendants)