Bernstrom v National Australia Bank Ltd [2001] QSC 374

State Reporting Bureau Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ No 52 of 2001 ANITA BERNSTROM and NATIONAL AUSTRALIA BANK LIMITED CAIRNS .. DATE 20/09/2001 JUDGMENT 1 Respondent/Plaintiff Applicant/Defendant 4Tlr Floo1, Tlte Laoo Coa1ts Oo111plex, Oeo1ge Ob eel, D1isba11e Q. 4808. Telepl1011e. tBT) 9247 4308. Facsi111ile. (8T) 9247 5592 -- 1 of 4 -- 20092001 T16/NA M/T CNS3/2001 (de Jersey CJ) HIS HONOUR: This is an application for summary judgment by the defendant bank on its counterclaim for an amount of money due to it, and for possession of mortgaged premises. There is no doubt that the relevant default occurred and prima facie, the bank would, therefore, be entitled to recover possession, the requisite notice having been given. The ground of defence is to be drawn from what is said to have 10 transpired at a meeting with the relevant bank manager on 1 November last year at which two of the sons of the plaintiff and a daughter-in-law met with the manager to discuss ways of "easing the pressure" created by interest rates upon the plaintiff's obligation to repay. The upshot of the meeting was that the sons agreed to make payments to assist their mother. The question is whether from the evidence of that, there can be drawn an undertaking or a promise on the part of the bank not to enforce its rights. The material from the plaintiff side rests in a handwritten affidavit by her son Shane Buckley, which does not establish any such agreement or promise on the part of the bank. Having received this affidavit this morning, Mr Lilley who appears for the applicant/defendant bank, spoke with Mr Buckley who has, I am informed from the Bar table without objection, agreed with the bulk of a diary note by the relevant bank manager Mr Matson dated 16 November 2000, which appears as the second page of Exhibit RLI 17 to the affidavit of Rex Leonard Isherwood filed on 23 August 2001. That reads simply as confirmation of the preparedness of the children 11 to continue 2 JUDGMENT 20 30 -- 2 of 4 -- 20092001 T16/NA M/T CNS3/2001 (de Jersey CJ) to assist for the foreseeable future 0 • Mr Buckley, I was informed, agreed that all except the last four lines of that diary note constituted an accurate account of the conversation they had with the bank manager. If that is so, it is difficult to see how the defence could possibly get to first base. This is not a case where as the matter is put to me now, therefore, there has been any agreement or 10 promise on the part of the bank not to enforce the rights it may now enforce following upon default. The payments which had been made subsequently by the children merely went in discharge of existing debt. There has been no particular consideration for these payments beyond the past facility extended to the plaintiff. Well, that's really all I need to say, I think. Mr Bradshaw who appears for the plaintiff has suggested that the matter should go to trial, so that further evidence along the lines of Mr Buckley's 20 affidavit can be put before the Court. · It really, however, did fall to the plaintiff to put before the Court at this stage, evidence sufficient to repel an entry of judgment summarily. HIS HONOUR: There will be judgment for the defendant against the plaintiff on the counterclaim for $296,901.07, and the recovery of possession of the property described as Lot 1 on 30 Registered Plan 73060 County of Nares Parish of Cairns, title 3 JUDGMENT -- 3 of 4 -- 20092001 T16/NA M/T CNS3/2001 (de Jersey CJ) Registered Plan 73060 County of Nares Parish of Cairns, title reference 21186150. The plaintiff's claim is dismissed. The plaintiff is to pay the defendant's costs of and incidental to the proceedings to be assessed. 4 JUDGMENT 10 -- 4 of 4 --