National Australia Bank v Hayek

[1999] NSWSC 607

CITATION:	National Australia Bank v Hayek [1999] NSWSC 607
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	11703/97
HEARING DATE(S):	15 June 1999
JUDGMENT DATE:	15 June 1999
PARTIES :	National Australia Bank Limited v Joseph Hayek
JUDGMENT OF:	Grove J at 1

COUNSEL :	D. Williams (Plaintiff) In person (Defendant)
SOLICITORS:	Dibbs Crowther & Osborne (Plaintiff)
CATCHWORDS:	Possession of land - Mortgage - Guarantee - Mortgagor in default
DECISION:	Judgment for the plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 15 June 1999

11703/97 - NATIONAL AUSTRALIA BANK LTD v JOSEPH HAYEK

JUDGMENT

1    HIS HONOUR: These are what might be described as relatively conventional proceedings brought by a mortgagee bank. The mortgagor gave a guarantee in respect of accommodation to be granted by the bank to a company of which the defendant is said to have been a director. The defendant has appeared for himself today. There are solicitors on the record but it seems that he is no longer in contact with them.

2    Directions were given some considerable time ago concerning the filing of affidavits on the part of the defendant but no affidavits have been filed.

3    At this stage of the delivery of the judgment, Mr Hayek has raised his hand and I will pause in order to hear what he has to say.

4    When I paused in giving these reasons, Mr Hayek asserted that he had exchanged contracts with a purchaser in respect of the property.

5    In response to my enquiry, Mr Williams of counsel indicated, as had been agreed earlier in the proceedings, there had been without prejudice negotiations, apparently through a Mr Freeman, and the bank was aware that there had been attempts to find a purchaser for the property by the defendant but neither Mr Williams nor those present in court instructing him has any knowledge of any exchange of contracts.

6    I am conscious that if such an exchange has taken place there may be complications, not in the least in the form of protest by the purchaser, but it does not seem to me that the assertion by the defendant in the circumstances I have mentioned should lead to the hearing today being rendered abortive.

7 I was proceeding to indicate that the defence pleaded raised an issue concerning the alleged absence of consideration for the guarantee. There is express consideration in the request of the defendant in paragraph 1 of Part A of the exhibited copy of the written agreement for guarantee and indemnity. Relief under the Contracts Review Act was sought but no evidence or argument in support of it was forthcoming. The requisites of proof of the plaintiff’s claim are amply demonstrated in the two affidavits of Peter John Crane sworn respectively 31 July 1998 and 15 June 1999. The latter manifested that the current amount due is $465,919.93.

8    In my view there is no reason why the order sought by the plaintiff should not be made. In response to my enquiry the defendant frankly told me that he is not occupying the subject premises as his home.

9    Accordingly, I make the following orders:

1. I direct entry of judgment for the plaintiff for possession of the property Certificate of Title Folio Identifier 2/259764 and known as 31 Wilbung Road, Illawong.

2. I grant leave to the plaintiff to issue a writ of possession for that property.
3. I direct entry of judgment for the plaintiff in the sum of $465,919.93.
4. I order the defendant to pay the plaintiff's costs of the action.

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