Commonwealth Bank -v- MacDonald [2000] NSWSC 791

Commonwealth Bank -v- MacDonald [2000] NSWSC 791

The Court found the bank entitled to an order for delivery up of vacant possession of flat 1 by MacDonald, setting aside default judgments and substituting orders aligning with the nature of the company title interest, as a writ of possession is inappropriate for rights of occupation under company shares. Elizabeth MacDonald had no enforceable right to occupy flat 1 that would preclude such an order. The bank's security entitles it to require the debtor to deliver up physical possession preparatory to sale.

Jurisdiction
Australia
Judgment Date
10 August 2000
Procedural Posture
Civil / Application to Vary/discharge Default Judgments; Enforcement of Security; Orders for Possession
Outcome
Default judgments set aside and orders substituted: first defendant to give plaintiff vacant possession of flat 1 within one month; payment of costs; money judgment in 99 proceedings.
Legal Topics
['default Judgment' 'variation of Judgment' 'enforcement of Covenant for Vacant Possession' 'company Title Unit Possession' 'rights of Occupation Under Shares' 'effect of Bankruptcy on Security' 'discretion to Vary Judgments']
['practice and Procedure' 'bankruptcy' 'property Law' 'equity'] ['default Judgment' 'variation of Judgment' 'enforcement of Covenant for Vacant Possession' 'company Title Unit Possession' 'rights of Occupation Under Shares' 'effect of Bankruptcy on Security' 'discretion to Vary Judgments']

Case Brief

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Procedural Posture

Civil / Application to Vary/discharge Default Judgments; Enforcement of Security; Orders for Possession

Legal Issues

  1. 1 ["Whether the bank is entitled to vary or discharge default judgments for possession against the first defendant and enforce its equitable charge to obtain vacant possession of flat 1 under company title; whether writ of possession is appropriate for company title units; effect of bankruptcy on right of occupation; status of second defendant's claimed occupation rights."]

Ratio Decidendi

The Court found the bank entitled to an order for delivery up of vacant possession of flat 1 by MacDonald, setting aside default judgments and substituting orders aligning with the nature of the company title interest, as a writ of possession is inappropriate for rights of occupation under company shares. Elizabeth MacDonald had no enforceable right to occupy flat 1 that would preclude such an order. The bank's security entitles it to require the debtor to deliver up physical possession preparatory to sale.

Court Disposition

Default judgments set aside and orders substituted: first defendant to give plaintiff vacant possession of flat 1 within one month; payment of costs; money judgment in 99 proceedings.

Orders

  • ['Default judgments in both proceedings set aside.' 'First defendant to deliver up to plaintiff, within one month, vacant possession of flat 1, 82-84 Bower Street, Manly.' 'First defendant to pay costs of proceedings.' 'In 99 proceedings, first defendant to pay plaintiff $599,026.33 plus interest calculated from 29...