Bendigo Bank v Peter Gorczynski [2016] NSWSC 693

Bendigo Bank v Peter Gorczynski [2016] NSWSC 693

The liberty reserved by McCallum J was confined to enabling the defendant to obtain information about the bank's calculation of the debt or surplus and did not authorise, years after judgment, the filing of a cross-claim seeking recoupment or broader relief to set aside or avoid the loan contracts and mortgage. However, the information sought was within the intended operation of the liberty, so the Court directed the bank to provide a further statement of account with short particulars of the legal basis for each item claimed. Because the defendant obtained an order in his favour but not the relief he sought, each party was ordered to bear its own costs.

Jurisdiction
Australia
Judgment Date
30 May 2016
Procedural Posture
Notice of Motion in Mortgage Proceedings Concerning Surplus Proceeds of Sale / Procedural and Other Ruling
Outcome
The defendant was not permitted to file the proposed cross-claim, but the plaintiff was directed to provide a further statement of account; each party was ordered to bear its own costs of the application.
Legal Topics
['liberty to Apply' 'surplus Proceeds of Mortgagee Sale' 'proposed Cross Claim' 'statement of Account' 'finality of Litigation' 'costs']
['civil Procedure' 'mortgages' 'banking and Finance'] ['liberty to Apply' 'surplus Proceeds of Mortgagee Sale' 'proposed Cross Claim' 'statement of Account' 'finality of Litigation' 'costs']

Case Brief

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Procedural Posture

Notice of Motion in Mortgage Proceedings Concerning Surplus Proceeds of Sale / Procedural and Other Ruling

Legal Issues

  1. 1 ['Whether the liberty to apply reserved by McCallum J permitted the defendant to file a cross-claim concerning alleged shortfall in surplus proceeds of sale.' 'Whether the proposed cross-claim sought relief beyond the scope of the reserved liberty.' 'Whether the plaintiff should be directed to provide further information explaining its calculation of the sum deducted from the proceeds of sale.' 'What costs order should be made on the application.']

Ratio Decidendi

The liberty reserved by McCallum J was confined to enabling the defendant to obtain information about the bank's calculation of the debt or surplus and did not authorise, years after judgment, the filing of a cross-claim seeking recoupment or broader relief to set aside or avoid the loan contracts and mortgage. However, the information sought was within the intended operation of the liberty, so the Court directed the bank to provide a further statement of account with short particulars of the legal basis for each item claimed. Because the defendant obtained an order in his favour but not the relief he sought, each party was ordered to bear its own costs.

Court Disposition

The defendant was not permitted to file the proposed cross-claim, but the plaintiff was directed to provide a further statement of account; each party was ordered to bear its own costs of the application.

Orders

  • ['Direct the plaintiff within twenty-eight days to provide the defendant with a further statement of account setting out its calculation of the sum due to it from the proceeds of sale of the mortgaged property as at 14 May 2010, including short particulars in relation to each item of the basis of its legal...