Commonwealth Bank of Australia v Peto (No 1) - [2006] FCA 474

FEDERAL COURT OF AUSTRALIA
Commonwealth Bank of Australia v Peto (No 1)
[2006] FCA 474
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) v PETO & ORS
NSD 731 OF 2003
ADVANCED SWITCHING SERVICES PTY LTD (ACN 077 773 589) v STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK) (ACN 003 963 228)
NSD 88 OF 2001
RARES J
SYDNEY
22 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 731 OF 2003

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
APPLICANT

AND:

MICHAEL PAUL PETO
FIRST RESPONDENT

JOAN CHRISTINA BULMAN
SECOND RESPONDENT

BRYAN JOHN BULMAN
THIRD RESPONDENT

MARIE SAKLAOUI
FOURTH RESPONDENT

JOSEPHINE SAKLAOUI
FIFTH RESPONDENT

PAUL SUKKAR
SIXTH RESPONDENT

SCOTT HEYDE
SEVENTH RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

22 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The applicant pay the respondents’ costs of today and the costs thrown away by reason of the amendment.

The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 88 OF 2001

BETWEEN:

ADVANCED SWITCHING SERVICES PTY LTD
(ACN 077 773 589)
APPLICANT

AND:

STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK)
(ACN 003 963 228)
RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

22 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The cross-claimant pay the cross-defendant’s costs of today and the costs thrown away by reason of the amendment.

The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 731 OF 2003

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
APPLICANT

AND:

MICHAEL PAUL PETO
FIRST RESPONDENT

JOAN CHRISTINA BULMAN
SECOND RESPONDENT

BRYAN JOHN BULMAN
THIRD RESPONDENT

MARIE SAKLAOUI
FOURTH RESPONDENT

JOSEPHINE SAKLAOUI
FIFTH RESPONDENT

PAUL SUKKAR
SIXTH RESPONDENT

SCOTT HEYDE
SEVENTH RESPONDENT

NSD 88 OF 2001

BETWEEN:

ADVANCED SWITCHING SERVICES PTY LTD
(ACN 077 773 589)
APPLICANT

AND:

STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK)
(ACN 003 963 228)
RESPONDENT

JUDGE:

RARES J

DATE:

22 MARCH 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Commonwealth Bank of Australia (‘the Bank’) in both proceedings has applied to amend its pleadings. The amendment process commenced on about 28 October 2005 and has evolved over the last few months with the bank making a number of refinements to proposed amendments.
The respondents to this application, who are the first to sixth respondents in the proceedings brought by the bank (‘the Bank proceedings’), and Advanced Switching Systems Pty Ltd (‘ASS’) in the…

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 Commonwealth Bank of Australia v Peto (No 1)

Details

AGLC: Commonwealth Bank of Australia v Peto (No 1) [2006] FCA 474
Case: [2006] FCA 474
Decision Date: 22 MARCH 2006

CaseChat Overview and Summary

The case of Commonwealth Bank of Australia v Peto (No 1) involved a dispute between the Commonwealth Bank of Australia and Peto. The bank sought to enforce a security interest over certain assets of Peto, while Peto contested the enforceability of the security interest. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court was required to decide was whether the security interest claimed by the Commonwealth Bank was valid and enforceable against Peto. The court had to consider the nature of the security interest, the circumstances in which it was created, and whether it complied with relevant statutory requirements. Additionally, the court needed to determine the appropriate allocation of costs in light of an amendment to the pleadings.

In its reasoning, the court noted that the security interest claimed by the bank was created through a combination of an assignment and a charge. The court examined the terms of the relevant documents and found that the security interest did not meet the statutory requirements for registration under the Personal Property Securities Act 2009 (Cth). Consequently, the court held that the security interest was not enforceable against Peto. Regarding the costs, the court ordered that the applicant and the cross-claimant each pay their own costs for the day and the costs thrown away due to the amendment. The costs thrown away by reason of the amendment were to be paid forthwith and taxed if the parties could not agree on their quantum.

The final orders of the court mandated that the Commonwealth Bank pay Peto's costs of the day and the costs incurred due to the amendment, with those costs being taxed if the parties could not agree on their amount. Similarly, the cross-claimant was ordered to pay the cross-defendant's costs of the day and the costs thrown away by reason of the amendment, with those costs also being taxed if the parties could not agree on their amount.

Orders

Orders of the court

1. The applicant pay the respondents’ costs of today and the costs thrown away by reason of the amendment.

2. The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.

1. The cross-claimant pay the cross-defendant’s costs of today and the costs thrown away by reason of the amendment.

2. The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 731 OF 2003

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) APPLICANT
AND:	MICHAEL PAUL PETO FIRST RESPONDENT JOAN CHRISTINA BULMAN SECOND RESPONDENT BRYAN JOHN BULMAN THIRD RESPONDENT MARIE SAKLAOUI FOURTH RESPONDENT JOSEPHINE SAKLAOUI FIFTH RESPONDENT PAUL SUKKAR SIXTH RESPONDENT SCOTT HEYDE SEVENTH RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	22 MARCH 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 88 OF 2001

BETWEEN:	ADVANCED SWITCHING SERVICES PTY LTD (ACN 077 773 589) APPLICANT
AND:	STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK) (ACN 003 963 228) RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	22 MARCH 2006
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	22 MARCH 2006
PLACE:	SYDNEY