National Australia Bank Limited v Barker [2019] NSWSC 1001

National Australia Bank Limited v Barker [2019] NSWSC 1001

The applicant's alleged remainder or equitable interest arising from Tamberlin AJ's orders was subject to the plaintiff's registered mortgage and could not resist the plaintiff's right to possession and sale following default. Any rights the applicant may have against the defendants or in surplus sale proceeds did not bear on the dispute between the plaintiff and defendants and would not be directly affected in the relevant sense. The proposed defence and cross-claim were unsupported by evidence and did not establish an interest taking priority over the registered mortgage. Joinder was therefore neither proper nor necessary under rr 6.24 and 6.27 of the UCPR.

Jurisdiction
Australia
Judgment Date
08 August 2019
Procedural Posture
Civil Procedure Application for Joinder in Possession of Land Proceedings / Notice of Motion Filed 11 June 2019 Seeking Joinder as a Defendant
Outcome
The notice of motion filed 11 June 2019 was dismissed, with costs against the applicant.
Legal Topics
['joinder of Parties' 'possession of Land' 'registered Mortgage' 'unregistered Equitable Interest' 'indefeasibility' 'caveat' 'power of Sale']
['civil Procedure' 'property Law' 'real Property' 'bankruptcy'] ['joinder of Parties' 'possession of Land' 'registered Mortgage' 'unregistered Equitable Interest' 'indefeasibility' 'caveat' 'power of Sale']

Case Brief

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Procedural Posture

Civil Procedure Application for Joinder in Possession of Land Proceedings / Notice of Motion Filed 11 June 2019 Seeking Joinder as a Defendant

Legal Issues

  1. 1 ["Whether the applicant ought to be joined as a party or whether his joinder was necessary to determine all matters in dispute in the plaintiff's possession proceedings." "Whether the applicant's alleged equitable or remainder interest in the Tamarama property would be directly affected by orders for possession and judgment sought by the plaintiff." "Whether the applicant's alleged interest could prevail over the plaintiff's registered mortgage." "Whether the applicant's proposed defence and cross-claim provided a sufficient basis for joinder."]

Ratio Decidendi

The applicant's alleged remainder or equitable interest arising from Tamberlin AJ's orders was subject to the plaintiff's registered mortgage and could not resist the plaintiff's right to possession and sale following default. Any rights the applicant may have against the defendants or in surplus sale proceeds did not bear on the dispute between the plaintiff and defendants and would not be directly affected in the relevant sense. The proposed defence and cross-claim were unsupported by evidence and did not establish an interest taking priority over the registered mortgage. Joinder was therefore neither proper nor necessary under rr 6.24 and 6.27 of the UCPR.

Court Disposition

The notice of motion filed 11 June 2019 was dismissed, with costs against the applicant.

Orders

  • ['The notice of motion filed 11 June 2019 is dismissed.' "The applicant is to pay the plaintiff's and first defendant's costs."]