Commonwealth Bank v Iinvest - [2016] NSWSC 1846

Supreme Court

New South Wales

Medium Neutral Citation: Commonwealth Bank v Iinvest [2016] NSWSC 1846
Hearing dates: 14 December 2016
Date of orders: 14 December 2016
Decision date: 14 December 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
Fourth Amended Statement of Cross Claim to be filed in accordance with the reasons below by Friday 16 December 2016
Defence to amended statement of cross claim filed by 23 December 2016
Statement of particulars filed by Friday 23 December 2016
Any notice to produce to be served by 16/12/2106, may be returnable by 20 January 2017 before Campbell J
List for directions on 20 January at 9:30 a.m.
Court book to be lodged during week of 23 January 2017

Catchwords: CIVIL PROCEDURE - statement of claim – application for leave to file fourth amended statement of cross claim - long procedural history - change of solicitors with new solicitors seeking to amend claim – relevant principles – efficiency – interest in preserving hearing dates – amendments permitted in accordance with reasons
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56- 61
Contracts Review Act 1980 (NSW)
National Consumer Credit Protection Act 2009 (Cth), Sch 1
Cases Cited: Aon Risk Services Australia Pty Limited v ANU [2009] 239 CLR 175, [2009] HCA 27
Hans Pet Construction Pty Limited v Cassar [2009] NSWCA 230
Lachlan v HP Mercantile Pty Limited [2015] 89 NSWLR 198; [2015] NSWCA 130
Category: Procedural and other rulings
Parties:
James Harker-Mortlock (Applicant)
J H M Pty Ltd (Second Applicant)
Iinvest Pty Ltd (in liquidation) (First Respondent)
Commonwealth Bank of Australia (Second Respondent)
Representation:
Counsel:
P King (Applicant)
J White (Respondent)
Solicitors:
Roderick Alexander Ian Storie (Applicant)
Campbell Hudson (Respondent)

File Number(s): 2013/108514

Extempore judgment (revised)

These proceedings relate to a dispute between a bank as a secured creditor and its customer. The proceedings arise in the Possessions List, and the customer and the company he controls have challenged the bank's title to possession by way of cross-claim relying, in the main, on various statutory species of unconscionability.
I have twice previously dealt with interlocutory disputes in this matter, and the factual matrix to the dispute is set out in my previous judgments ([2014] 1257; [2014] NSWSC 1640) I will not repeat those matters, except to the extent to which it may be necessary to make this present decision.
The matter has been fixed for hearing with an estimate of in excess of six days commencing on 30 January 2017. As it happens, the matter has been assigned to me as trial judge. The present application is the cross-claimants’ application to amend the cross-claim in what will be a fourth statement of cross-claim. The bank objects to the further amendment.

Introduction

Stating the matter generally and by way of introduction, the cross-claimants wish to amend to raise for the first time claims for relief under the Contracts Review Act1980 (NSW), and under the National Credit Code. The cross-claimants also wish to amplify claims already brought relying…

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.

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Details

Case: [2016] NSWSC 1846
Decision Date: 14 December 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Commonwealth Bank v Iinvest involves a dispute over the right of the plaintiff, Commonwealth Bank, to be compensated for losses incurred due to alleged misrepresentations by the defendant, Iinvest. The procedural history of this matter is lengthy, with multiple changes of solicitors for both parties, and a series of amendments to statements of claim and cross-claims. The latest application pertains to the plaintiff’s request to file a fourth amended statement of cross-claim. The central issue before the Court was whether the plaintiff should be permitted to file this additional amendment, considering the protracted procedural history and the need to balance the interests of both parties with the overarching objective of judicial efficiency.

The Court examined the principles governing amendments to pleadings, including the need to ensure a fair trial, preserve hearing dates, and the importance of judicial efficiency. It considered the procedural fairness to both parties and the extent to which the proposed amendment would impact the existing schedule and overall progress of the case. The Court also took into account the rationale behind the amendment and the necessity of the changes sought. In determining whether to grant leave for the filing of the fourth amended statement of cross-claim, the Court assessed the potential impact on the proceedings and whether the amendment would significantly advance the case or merely delay its resolution.

Upon careful consideration, the Court concluded that the amendment should be permitted, provided that it adhered to the outlined reasons. The Court acknowledged the importance of maintaining an efficient process and preserving scheduled hearing dates. It found that the amendment, while not trivial, was necessary to address specific issues that had arisen during the course of the litigation. The Court granted leave for the plaintiff to file the fourth amended statement of cross-claim, subject to the adherence to the specified reasons and conditions. This decision was made to ensure that the proceedings move forward in an expeditious and fair manner, taking into account the interests of both parties.

Orders