National Australia Bank Ltd v C & O Voukidis Pty Ltd [2014] NSWSC 384

National Australia Bank Ltd v C & O Voukidis Pty Ltd [2014] NSWSC 384

The Bank established defaults under the relevant facilities, guarantees and mortgages, and the asserted claims concerning surplus funds, term deposit monies and alleged undervalue sales did not impugn the Bank's title as mortgagee but were matters of cross-claim or set-off that could not defeat possession. Summary judgment was therefore appropriate for the Burwood and Drummoyne properties. However, the evidence made it arguable that the October 2010 rearrangement released the Vincentia property from security, which could impugn the Bank's title to possession and raised a triable issue, so summary judgment for that property was refused.

Jurisdiction
Australia
Judgment Date
03 April 2014
Procedural Posture
Mortgagee's Claim for Possession of Mortgaged Land / Interlocutory Applications for Summary Judgment
Outcome
Summary judgment granted for possession of the Burwood and Drummoyne properties; summary judgment for possession of the Vincentia property refused; leave granted to the first and fourth defendants to replead matters by cross-claim; costs to abide determination of the cross-claims.
Legal Topics
['summary Judgment' 'possession of Mortgaged Land' "mortgagee's Remedies" 'guarantees' 'set Off and Cross Claims' "mortgagee's Power of Sale"]
['civil Procedure' 'real Property' 'banking and Finance' 'mortgages'] ['summary Judgment' 'possession of Mortgaged Land' "mortgagee's Remedies" 'guarantees' 'set Off and Cross Claims' "mortgagee's Power of Sale"]

Case Brief

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Procedural Posture

Mortgagee's Claim for Possession of Mortgaged Land / Interlocutory Applications for Summary Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment for possession of the Burwood property and the Drummoyne property under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the first and fourth defendants had any underlying defence with a real, not fanciful, prospect of success.' "Whether claims for damages, equitable compensation or set-off could defeat a mortgagee's claim for possession." 'Whether there was a triable issue that the Vincentia property had been released from security as part of the October 2010 rearrangement of credit facilities.']

Ratio Decidendi

The Bank established defaults under the relevant facilities, guarantees and mortgages, and the asserted claims concerning surplus funds, term deposit monies and alleged undervalue sales did not impugn the Bank's title as mortgagee but were matters of cross-claim or set-off that could not defeat possession. Summary judgment was therefore appropriate for the Burwood and Drummoyne properties. However, the evidence made it arguable that the October 2010 rearrangement released the Vincentia property from security, which could impugn the Bank's title to possession and raised a triable issue, so summary judgment for that property was refused.

Court Disposition

Summary judgment granted for possession of the Burwood and Drummoyne properties; summary judgment for possession of the Vincentia property refused; leave granted to the first and fourth defendants to replead matters by cross-claim; costs to abide determination of the cross-claims.

Orders

  • ['Under Rule 13.1 Uniform Civil Procedure Rules 2005, judgment for the plaintiff for the possession of the whole of the land in folio identifier X/XXXXXX situated at and known as X XXXXX XXXXXX, Burwood in the State of New South Wales.' 'Leave to the plaintiff to issue a Writ of Possession in respect of the property...