State Bank of New South Wales Ltd v Krys Properties Pty Ltd & Ors [1997] FCA 784

State Bank of New South Wales Ltd v Krys Properties Pty Ltd & Ors [1997] FCA 784

The bank is entitled to judgment for possession of the property and for the debt of $3,851,872.50. The cross-claim by Krys and others is dismissed as it lacks merit, is not supported by evidence, and the claims of breach of duty, bad faith, unconscionability, conversion, and loss are not made out. Cross-claimants other than Krys have no standing. There is no evidence of any actionable breach or loss caused by the bank.

Parties
Applicant / Cross Respondent: STATE BANK OF NEW SOUTH WALES LTD; Respondent / Seventh Cross Claimant: KRYS PROPERTIES PTY LTD; First Cross Claimant: MICHAEL VINCENT BOURKE; Second Cross Claimant: L & M HOLDINGS PTY LTD; Third Cross Claimant: L R A RESTAURANTS PTY LTD; Fourth Cross Claimant: HUNTER DEVELOPMENT CO PTY LTD; Fifth Cross Claimant: EMAS PTY LTD; Sixth Cross Claimant: BONOTO PTY LTD; Eighth Cross Claimant: AVITO PTY LTD; Ninth Cross Claimant: TERRENCE BOURKE
Jurisdiction
Australia
Judgment Date
18 August 1997
Procedural Posture
Bank's Application for Possession and Money Judgment; Cross Claim by Multiple Cross Claimants / Final Judgment After Hearing With Reasons
Outcome
Judgment for the applicant; cross-claim dismissed; orders for possession, costs, and leave to issue writ of possession.
Legal Topics
Mortgage Enforcement, Cross Claims, Duties of Mortgagees, Summary Dismissal/standing, Breach of Duty of Care, Conversion, Unconscionable Conduct, Damages, Mortgagee Sale
Banking and Finance Law Property Law Civil Procedure Mortgage Enforcement Cross Claims Duties of Mortgagees Summary Dismissal/standing Breach of Duty of Care +4 more

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Parties

STATE BANK OF NEW SOUTH WALES LTD

Applicant / Cross Respondent

KRYS PROPERTIES PTY LTD

Respondent / Seventh Cross Claimant

MICHAEL VINCENT BOURKE

First Cross Claimant

L & M HOLDINGS PTY LTD

Second Cross Claimant

L R A RESTAURANTS PTY LTD

Third Cross Claimant

HUNTER DEVELOPMENT CO PTY LTD

Fourth Cross Claimant

EMAS PTY LTD

Fifth Cross Claimant

BONOTO PTY LTD

Sixth Cross Claimant

AVITO PTY LTD

Eighth Cross Claimant

TERRENCE BOURKE

Ninth Cross Claimant

Procedural Posture

Bank's Application for Possession and Money Judgment; Cross Claim by Multiple Cross Claimants / Final Judgment After Hearing With Reasons

Legal Issues

  1. 1 Whether the applicant bank is entitled to judgment for possession and outstanding monies under the mortgage; whether the cross-claimants' claims raise any defence or right to relief; standing to bring cross-claim; whether the bank breached any duty (contractual, tortious, equitable) to the cross-claimants; whether bank's conduct was unconscionable or involved bad faith, fraud or conversion.

Ratio Decidendi

The bank is entitled to judgment for possession of the property and for the debt of $3,851,872.50. The cross-claim by Krys and others is dismissed as it lacks merit, is not supported by evidence, and the claims of breach of duty, bad faith, unconscionability, conversion, and loss are not made out. Cross-claimants other than Krys have no standing. There is no evidence of any actionable breach or loss caused by the bank.

Court Disposition

Judgment for the applicant; cross-claim dismissed; orders for possession, costs, and leave to issue writ of possession.

Orders

  • Judgment for the applicant against the respondent for $3,851,872.50.
  • Judgment for the applicant for possession of land at 36 Free Church Street, Maitland (Folio Identifier 1/738913).