National Australia Bank Limited v Hunwick (No. 2)

The matter involved the National Australia Bank Limited, as the plaintiff, against the Hunwicks, the defendants, in the Federal Circuit Court. The dispute centred on a claim for possession of land following the mortgagors' default on a mortgage agreement. The court had previously made an order for possession in 2016, and the plaintiff had issued a writ for possession of the land. A short-term stay of execution of the writ had been granted to the tenant based on health grounds. The tenant subsequently applied for a further stay of proceedings, and a corporation sought to be joined as a party to the proceedings. The corporation claimed it was a party to an unregistered contract for the sale of the property, executed in December 2014, and sought to be joined to permit a claim for equitable relief against the plaintiff. The court needed to determine whether the proposed claim for equitable relief was viable and whether it should be prosecuted in separate proceedings.

The court found that the corporation's claim for equitable relief was tenuous and that any such claim should be pursued in separate proceedings. The plaintiff had proceeded on its registered mortgage and obtained an order for possession from the court, establishing its clear legal right to possession of the property. The court found no basis for joining the corporation to the plaintiff's possession list proceedings or extending the stay. Consequently, the notices of motion by both the tenant and the corporation were dismissed with costs.

The court emphasised that the plaintiff's rights under the registered mortgage were paramount, and the tenant's health grounds did not provide a sufficient basis for extending the stay of execution. The court considered that any claim for equitable relief should be pursued separately, as it did not form part of the current possession proceedings. The dismissal of the notices of motion by both the tenant and the corporation reflected the court's view that the proposed claims were not suitable for the current proceedings. The court awarded costs to the plaintiff, National Australia Bank Limited, against the tenant and the corporation.