Commonwealth Bank of Australia v Callaghan [2016] NSWSC 1391

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Callaghan [2016] NSWSC 1391 Hearing dates: 28 September 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to Brett Henry Woodcock and Mary Ella Woodcock to be joined as defendants to these proceedings.

(2) Order that the Writ of Possession issued on 22 August 2016 concerning all of the land comprised in Folio Identifier 204/845864 situated at and known as 5 Harrower Place, Glenmore Park in the State of New South Wales, (the Property), be stayed until further order of the Court.

(3) The Plaintiff, its servants and agents are restrained from taking any steps to take possession of or to sell the Property until further order of the Court.

(4) The Plaintiff by its solicitor is to notify the New South Wales Sheriff at Penrith forthwith that the Writ of Possession is stayed until further order of the Court.

(5) The stay referred to above is granted on the condition that Mr and Mrs Woodcock apply for an expedited hearing of the proceedings commenced by the second defendant in the Equity Division, being proceedings 96250/16, at the court's earliest convenience.

(6) Note the apparent potential of a concurrent mediation in the proceedings in this division and the proceedings in the Equity Division to resolve both sets of proceedings.

(7) Reserve the question of costs.

(8) Liberty to apply on two days' notice. Catchwords: PRACTICE AND PROCEDURE – plaintiff mortgagee of property – defendants registered proprietors of property – applicants entered into a Rent-Buy arrangement with defendants – writ of possession executed in favour of plaintiff – second defendant commenced proceedings in Equity Division for order of sale of property pursuant to s 66G of Conveyancing Act 1919 (NSW) – notice of motion filed by applicants to be joined as defendants to proceedings and for stay of execution writ of possession – stay granted subject to applicants applying for expedition of Equity Proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), s 135 Conveyancing Act 1919 (NSW), s 66G Cases Cited: Deputy Commissioner of Taxation (NSW) v Mackey (1982) 13 ATR 547 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) Rodney John Callaghan (First Defendant) Lyndal Elizabeth Callaghan (Second Defendant) Brett Henry Woodcock (First Applicant) Mary Ella Woodcock (Second Applicant) Representation: Counsel: T Cavanagh (Plaintiff) M Bennett (Applicants)