GE Commercial Corp (Aust) Pty Ltd v Murdica

[2007] NSWSC 1228

CITATION:	GE Commercial Corp (Aust) Pty Ltd v Murdica [2007] NSWSC 1228
HEARING DATE(S):	25 October 2007
JUDGMENT DATE :	25 October 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order for specific performance of promises by guarantors to grant to plaintiff legal mortgages of real property in registrable form.
CATCHWORDS:	EQUITY [385] – Equitable remedies – Specific performance – Particular contracts – Agreements to give security – Agreement by guarantors to give legal mortgages of real property in registrable form.
PARTIES:	GE Commercial Corporation (Australia) Pty Ltd (P) Michael Murdica (D1) Julie Murdica (D2) Peter Gualtieri (D3) Marisa Gualtieri (D4)
FILE NUMBER(S):	SC 2628/07
COUNSEL:	A J Bulley (P) No appearance (Ds)
SOLICITORS:	Dibbs Abbott Stillman (P) No appearance (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 25 OCTOBER 2007

2628/07 GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LTD v MURDICA & ORS

JUDGMENT

1 HIS HONOUR: This is the hearing of proceedings for specific performance against four guarantors under a Deed of Secured Guarantee. The obligation is an obligation under clause 7.1(b) of the Deed to grant to the plaintiff a legal mortgage in registrable form containing such terms and conditions as the plaintiff may require of any land held by the guarantors now or in the future. The principal obligee is in default and it seems that the obligation under clause 7.1(b) of the Deed has been enlivened against the four defendants, the first two of whom are joint tenants of a property in Haberfield and the third and fourth of whom are joint tenants of a property in Hunters Hill.

2 The defendants have never appeared at any time that these proceedings have been before the Court. Although today was initially fixed for a directions hearing, the defendants have been informed that the plaintiff intends to seek substantive orders against them today. In fact, no communication has been received by the plaintiff’s solicitors from or on behalf of the defendants since the proceedings were commenced on 9 May 2007, save that Miss Watkins, the solicitor with the conduct of the matter on behalf of the plaintiff, was telephoned yesterday by a Sue Parker, who said she was a solicitor instructed by the first defendant and only the first defendant and that she was instructed to seek a two week adjournment of the case today as the first and second defendants at least were attempting to obtain finance. However, when Miss Watkins spoke to that solicitor again just after 9 o’clock this morning, the solicitor indicated that she did not have instructions to appear this morning and has not appeared.

3 The plaintiff has established its case for the orders sought. I propose to make orders in accordance with the form of order submitted to me on behalf of the plaintiff, which is initialled by me and placed with the papers.

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