Commonwealth Bank of Australia v Oswal

Supreme Court Rules 2000 on the defendants, and to amend the originating application accordingly.

2.
The defendants are ordered to pay the applicant’s costs of the originating application on the standard basis.

The Commonwealth Bank of Australia sought leave to serve documents on two defendants, the Oswals, who were the sole directors of a company that had entered into a transaction with the bank. The bank alleged that the Oswals had engaged in a conspiracy to defraud the bank. The defendants argued that the bank was unable to identify the Oswals as defendants in the proceeding because they were not parties to the alleged agreement. The bank contended that the defendants were nonetheless proper parties because they were liable for the debts of the company.

The court found that the defendants were proper parties to the proceeding, despite not being parties to the agreement, because they had control over the company and were therefore liable for its debts. The court noted that the defendants had been actively involved in the company’s business and had control over its assets and liabilities. The court also found that the bank had made out a prima facie case against the defendants, and that it was in the interests of justice for the defendants to be joined as parties to the proceeding. The court therefore granted leave for the bank to serve documents on the defendants, and ordered the defendants to pay the bank’s costs of the originating application.