CBA v Davies - [2011] VSC 666

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2008 4676

THE COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)	Plaintiff
v
IVOR THOMAS DAVIES	First Defendant
SWAROOP DAVIES	Second Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 November 2011
DATE OF JUDGMENT:	21 December 2011
CASE MAY BE CITED AS:	CBA v Davies and Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 666

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MORTGAGE – Default – Action for possession – Summary Judgment - Essential elements of judgment for possession established – Counterclaim subject of proceedings in VCAT – Counterclaim barred by res judicata and issue estoppel – Costs at VCAT awarded against defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mereine	Minter Ellison
For the First and Second Defendants	In Person

HER HONOUR:

The plaintiff, the Commonwealth Bank of Australia (“CBA”) by its summons dated 15 August 2011 seeks orders, inter alia, that:

1.the stay granted by Master Evans on 3 July 2008 be lifted;
2.possession of the land situated and known as 901/422 Collins Street, Melbourne (“property”);
3.the sum of $424,495.92 together with interest;[1]
4.its contractual claim for $196,104.71, being expenses which CBA reasonably incurred in the VCAT proceeding; and
5.its costs of this proceeding.

[1]Affidavit of Christine Karthikeyan sworn 10 November 2011 at [5].

CBA seeks the above relief on the basis that it has established each of the material facts and the defendants, the Davies, have no defence to CBA’s claim. CBA submits that the Davies are barred from raising the causes of action and issues pleaded in their amended counterclaim as they are res judicata and/or the subject of an issue estoppel.

Alternatively, by its summons, CBA seeks an order that the Davies’ amended defence dated 10 June 2006 be struck out on the basis that it does not disclose an arguable defence to CBA’s claim or is frivolous and vexatious.

CBA also seeks summary judgment dismissing the Davies’ amended counterclaim dated 10 June 2008, alternatively that it be struck out.

On 14 February 2008, CBA filed proceedings against the Davies in this Court, seeking payment of $322,253.76 (plus interest and costs) and possession of the Collins Street property.

The Davies filed an amended defence and counterclaim dated 6 June 2008.

On 30 July 2008, Master Evans made consent orders that this proceeding be stayed until the hearing and determination of the proceeding in the Victorian Civil and Administrative Tribunal (“VCAT”). On 4 April 2008 the Davies commenced a proceeding in VCAT, making numerous allegations against CBA and seeking, inter alia, compensation and a stay and postponement of this proceeding.

On 10 May 2011, Member Proctor handed down reasons in the VCAT proceeding and determined that the proceeding be dismissed.

CBA relies upon the affidavits of Christine Karthikeyan sworn 12 August 2011 and 10 November 2011 in support of its application.

The Davies rely upon affidavits of Swaroop Davies sworn 10 November 2011, 11 November 2011 and 14 November 2011.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CBA v Davies

Details

AGLC: CBA v Davies [2011] VSC 666
Case: [2011] VSC 666
Decision Date: 21 December 2011

CaseChat Overview and Summary

The case between the Commonwealth Bank of Australia (CBA) and Ms. Davies involved a dispute over a mortgage default, with CBA seeking possession of a property. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether CBA had established all essential elements required for a summary judgment in an action for possession of the property. Additionally, the court needed to determine if a counterclaim by Ms. Davies was barred due to res judicata and issue estoppel, given that the counterclaim was the subject of separate proceedings in the Victorian Civil and Administrative Tribunal (VCAT), where costs were awarded against Ms. Davies.

The court examined the requirements for summary judgment in actions for possession, which include establishing that the mortgagee has a valid and enforceable mortgage, the mortgagor is in default, and the amount due is ascertained or capable of being ascertained. In this case, the court found that CBA had met these criteria. Furthermore, the court held that Ms. Davies' counterclaim was precluded by res judicata because it was the same matter that had been decided by VCAT, and issue estoppel because VCAT had already determined the issues in the counterclaim. Consequently, the counterclaim was barred. Additionally, the court ordered Ms. Davies to pay the costs incurred by CBA at VCAT.

In conclusion, the Supreme Court of Victoria ruled that CBA had established all essential elements for a summary judgment in its action for possession. The court also held that Ms. Davies' counterclaim was barred by res judicata and issue estoppel due to prior determinations by VCAT, and ordered her to pay CBA's costs from the VCAT proceedings.

Orders