Commonwealth Bank of Australia v Dariusz Adam Gaszewski & anor [2006] NSWSC 772

Commonwealth Bank of Australia v Dariusz Adam Gaszewski & anor [2006] NSWSC 772

The loan documentation bound the Gaszewskis to give the Bank a mortgage in the Bank's required form over the property, and the first defendant had failed to execute it despite notice and repeated attempts to obtain his signature. Because the proceedings had been duly served and the defendants did not appear, the Bank proved its claim. The circumstances demonstrated the probable futility of further requests, justifying orders for specific performance and, upon proof of non-compliance, execution of the mortgage by the Registrar under Civil Procedure Act 2005 (NSW), s 94.

Jurisdiction
Australia
Judgment Date
03 July 2006
Procedural Posture
Equity Proceedings for Specific Performance of an Agreement to Execute a Mortgage / Ex Tempore Judgment After Substituted Service and No Appearance by the Defendants
Outcome
Orders made requiring the first defendant to execute the mortgage, with provision for execution by the Registrar upon proof of non-compliance, and costs ordered against the first defendant.
Legal Topics
['specific Performance' 'agreement to Give Mortgage' 'execution of Documents by Registrar' 'substituted Service' 'default of Appearance']
['contract' 'equity' 'civil Procedure' 'property' 'banking and Finance'] ['specific Performance' 'agreement to Give Mortgage' 'execution of Documents by Registrar' 'substituted Service' 'default of Appearance']

Case Brief

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Procedural Posture

Equity Proceedings for Specific Performance of an Agreement to Execute a Mortgage / Ex Tempore Judgment After Substituted Service and No Appearance by the Defendants

Legal Issues

  1. 1 ['Whether the first defendant was bound under the loan documentation to execute a mortgage over the property.' 'Whether the plaintiff was entitled to specific performance of that obligation.' "Whether, upon non-compliance, the mortgage should be executed by the Registrar in the first defendant's name and on his behalf under Civil Procedure Act 2005 (NSW), s 94."]

Ratio Decidendi

The loan documentation bound the Gaszewskis to give the Bank a mortgage in the Bank's required form over the property, and the first defendant had failed to execute it despite notice and repeated attempts to obtain his signature. Because the proceedings had been duly served and the defendants did not appear, the Bank proved its claim. The circumstances demonstrated the probable futility of further requests, justifying orders for specific performance and, upon proof of non-compliance, execution of the mortgage by the Registrar under Civil Procedure Act 2005 (NSW), s 94.

Court Disposition

Orders made requiring the first defendant to execute the mortgage, with provision for execution by the Registrar upon proof of non-compliance, and costs ordered against the first defendant.

Orders

  • ['Declare that, pursuant to the Consumer Credit Contract Schedule and the Usual Terms And Conditions For Consumer Mortgage Lending, the first defendant Dariusz Adam Gaszewski is bound to execute a mortgage over the land situate at 4/38 Queenscliff Road, Queenscliff in the State of New South Wales and comprised in...