Bendigo and Adelaide Bank Limited v Tombs and Anor [2010] NSWSC 1427

Bendigo and Adelaide Bank Limited v Tombs and Anor [2010] NSWSC 1427

Summary judgment was granted for the Plaintiff because the Plaintiff had established mortgage default, valid service of all requisite statutory notices, no waiver or estoppel arose, and the alleged frustration, cross-claims, substituted or varied agreements raised by the Defendant were not arguable defences....

Source-derived case information.

Parties
Plaintiff: Bendigo and Adelaide Bank Limited; First Defendant: Denis John Tombs; Second Defendant: Estate of the Late Paula Joyce Williams
Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Civil Proceedings Possession List / Summary Judgment; Application for Summary Dismissal
Outcome
Summary judgment granted for Plaintiff; Cross-Claim summarily dismissed; defendant's Notice of Motion dismissed; document styled 'Reply and Defence and Cross-Claim' rejected.
Legal Topics
Mortgage Default, Possession of Land, Summary Judgment, Notice Requirements, Waiver, Estoppel, Frustration, Service of Statutory Notices, Cross Claim Dismissal
Contracts Property Civil Procedure Mortgage Default Possession of Land Summary Judgment Notice Requirements Waiver +4 more

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Summary, issues, holding and outcome

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Parties

Bendigo and Adelaide Bank Limited

Plaintiff

Denis John Tombs

First Defendant

Estate of the Late Paula Joyce Williams

Second Defendant

Procedural Posture

Civil Proceedings Possession List / Summary Judgment; Application for Summary Dismissal

Legal Issues

  1. 1 Whether summary judgment should be granted for possession of land and monetary judgment following mortgage default
  2. 2 Whether Notice of Motion for strike out due to alleged non-service of statutory notices is valid
  3. 3 Whether cross-claim based on waiver, estoppel, and frustration is sustainable

Ratio Decidendi

Summary judgment was granted for the Plaintiff because the Plaintiff had established mortgage default, valid service of all requisite statutory notices, no waiver or estoppel arose, and the alleged frustration, cross-claims, substituted or varied agreements raised by the Defendant were not arguable defences. Defendant admitted notices were served and did not comply with the terms of forbearance. There was no serious issue to be tried, and the Plaintiff was entitled to relief sought.

Court Disposition

Summary judgment granted for Plaintiff; Cross-Claim summarily dismissed; defendant's Notice of Motion dismissed; document styled 'Reply and Defence and Cross-Claim' rejected.

Orders

  • Judgment for Plaintiff for possession of land comprised in Folio Identifier 131/527739, 18 Lemon Tree Street, Wyoming, NSW
  • Plaintiff granted leave to issue writ of possession forthwith