Commonwealth Bank of Australia v Segal [2016] NSWSC 1016

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Segal [2016] NSWSC 1016 Hearing dates: 20 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the second cross-defendant (applicant) against the cross-claimant (respondent) in the sum of $79,500.

(2) Order the cross-claimant to pay the second cross-defendant's (applicant's) costs of the notice of motion.

(3) I note that order (1) is intended to implement order (4) made by Campbell J on 29 May 2015 as follows:

The cross claimant is to indemnify the second cross defendant against the costs of the first cross defendant against the cross claimant to the extent those costs are levied on the funds retained by first cross defendant to the detriment of the second cross defendant's contingent one- half share in those funds. Catchwords: PRACTICE AND PROCEDURE – application for further orders to give effect to orders made in principal proceedings – applicant in notice of motion formerly tenant in common in equal shares with respondent in property that was sold in possession proceedings commenced by the bank as mortgagee – bank retained monies in the Common Fund which were drawn down in payment for litigation continued by the respondent – orders made in principal proceedings for respondent to indemnify applicant in respect of these costs – costs incurred exceeded respondent's share of Common Fund – Common Fund effectively exhausted by hearing date – judgment for applicant in the amount of its share of the surplus of the proceeds of sale plus interest Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Conveyancing Act 1919 (NSW), s 66G Supreme Court Act 19070 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Barel v Segal (No 2) [2012] NSWSC 1054 Barel v Segal (No 3) [2012] NSWSC 1319 Commonwealth Bank of Australia v Segal [2015] NSWSC 527 Falkner v Bourke (1990) 19 NSWLR 574 Mr Rental Australia Pty Ltd v IRD Services Pty Ltd (No. 2) [2016] NSWSC 918 Perisher Blue Pty Ltd v Nair Smith (No. 2) [2015] NSWCA 268 Philips v Walsh (1990) 20 NSWLR 206 Segal v Barel [2013] NSWCA 92 Segal v Osborne [2016] NSWSC 941 Short v Crawley (No. 45) [2013] NSWSC 1541 Category: Principal judgment Parties: Commonwealth Bank of Australia (Plaintiff/ 1st Cross-Defendant) Phillip Segal (Defendant/ Cross-Claimant) Elie Barel (2nd Cross-Defendant) Representation: Counsel: No appearance Plaintiff E Arulrajah (Defendant) C.O. Gleeson (2nd Cross-Defendant)