Commonwealth Bank of Australia v iInvest Pty Ltd (in liq) and James Harker-Mortlock (No 3) [2016] NSWSC 1097

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v iInvest Pty Ltd (in liq) and James Harker-Mortlock (No 3) [2016] NSWSC 1097 Hearing dates: 9 August 2016 Decision date: 10 August 2016 Jurisdiction: Common Law Before: N Adams J Decision: (1) Vacate the hearing date of 15 August 2016. (2) The matter is listed for hearing on 30 January 2017, with an estimate of six days plus. (3) The applicant is to pay the respondent's costs thrown away as agreed or assessed. Catchwords: PRACTICE AND PROCEDURE – notice of motion – application to vacate hearing dates – where applicant to be unrepresented at hearing to commence next week – hearing dates vacated Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) [2014] NSWSC 1257 Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) (No 2) [2014] NSWSC 1640 Category: Procedural and other rulings Parties: James Harker-Mortlock (Applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: Mr Storie, solicitor (Applicant) Mr White (Respondent)

Solicitors: Roderick Storie Solicitors (Applicant) Gadens (Respondent) File Number(s): 2013/00108514 Publication restriction: Nil

Judgment 1. By Notice of Motion filed on 3 August 2016, the second defendant James Harker-Mortlock ("the applicant") seeks an order that the six-day hearing to commence on 15 August 2016 in this matter be vacated. The plaintiff in the proceedings, the Commonwealth Bank of Australia, seeks possession of two properties in Yass currently owned by the first defendant. The applicant is the sole director and shareholder of the first defendant and was the guarantor of facilities provided by the plaintiff to the first defendant. The first defendant is in liquidation and does not play an active role in the proceedings. 2. The applicant has filed a cross-claim against the plaintiff seeking rectification of a trust deed executed in relation to the Yass properties and, upon rectification, declarations that the properties are held on trust for the Harker-Mortlock Family Trust. 3. The plaintiff ("the respondent") opposes the making of the order sought in the Notice of Motion. 4. This application to vacate the hearing date came before me on 9 August 2016 in my capacity as duty judge. Mr Storie, solicitor, appeared on behalf of the applicant and Mr White of counsel appeared on behalf of the respondent. After hearing submissions I reserved my decision overnight.