Homai Kermani v Westpac Banking Corporation

In the case of Homai Kermani versus Westpac Banking Corporation, the matter was heard in the Supreme Court of New South Wales. The plaintiff, Homai Kermani, brought an action against the defendant, Westpac Banking Corporation, concerning a mortgage secured by property. Kermani alleged that the contractual arrangement whereby the bank received a rebate on the total legal costs incurred was illegal, and that this arrangement contravened public policy. The defendant contested these claims, asserting that the contractual arrangement was lawful and that Kermani's claims were an abuse of process.

The court was required to determine several key legal issues. Firstly, whether Kermani's proceedings constituted an abuse of process given the matters had been raised and dealt with in earlier proceedings. Secondly, whether Kermani was privy to a party in the earlier proceeding and whether she had a real interest in those proceedings. Thirdly, the court needed to assess whether Kermani's current application was a collateral attack on an earlier decision, and if she was re-litigating the same issues. Lastly, the court had to consider whether the contractual arrangement between the bank and its solicitors was contrary to public policy.

The court held that Kermani's application was not an abuse of process. The earlier proceedings did not prevent Kermani from bringing her current action, as she was not privy to the parties in those proceedings and did not have a real interest in them. The court found that Kermani's current application was not a collateral attack and that she was not re-litigating the same issues. Regarding the contractual arrangement, the court determined that the rebate scheme was not illegal or contrary to public policy. The court found that the contractual arrangement between the bank and its solicitors did not taint the overall mortgage agreement with illegality.

As a result of this determination, the court dismissed Kermani's claims, and the defendant's motion for summary judgment was upheld. The court ordered that Kermani pay the defendant's costs of the proceeding.