Nicholas Bobos v Commonwealth Bank of Australia

[2016] NSWSC 449

Supreme Court

New South Wales

Medium Neutral Citation:	Nicholas Bobos v Commonwealth Bank of Australia [2016] NSWSC 449
Hearing dates:	15 April 2016
Decision date:	15 April 2016
Jurisdiction:	Equity
Before:	Meagher JA
Decision:	1. Order the third defendant’s motion dated 9 February 2016 (for payment of monies paid into Court) be adjourned until 6 May 2016. 2. Order the plaintiff’s motion dated 14 April 2016 (for an adjournment) otherwise be dismissed. 3. List proceedings 2016/20904 and 2014/47464 for directions in the Commercial List on Friday, 6 May 2016. 4. No order as to the costs of today’s hearing.
Catchwords:	PROCEDURE – motion seeking payment to third defendant of monies paid into Court – application to adjourn motion – basis on which monies paid into Court – no question of principle
Category:	Procedural and other rulings
Parties:	Nicholas Bobos (Plaintiff) Commonwealth Bank of Australia (First Defendant) Nicholas Gyss (Second Defendant) Cristal Mining Australia Limited (Third Defendant)
Representation:	Counsel: D C Eardley (Plaintiff) No appearance (First Defendant) V F Kerr (Second Defendant) M Christie SC (Third Defendant)   Solicitors: Downeys Lawyers (Plaintiff) No appearance (First Defendant) Fisher Jeffries (Second Defendant) Baker & McKenzie (Third Defendant)
File Number(s):	2016/20904

Judgment – Ex TEMPORE

1. HIS HONOUR: These proceedings were commenced by a summons filed on 21 January 2016. Mr Bobos sought relief which included restraining Cristal Mining Australia Ltd (Cristal) from calling on a bank guarantee issued by the Commonwealth Bank of Australia (the Bank) in respect of a building contract between Cristal as principal and Bobos Engineering Australia Pty Ltd (Bobos Engineering), which is now in liquidation.

2. When the proceedings were returnable before Lindsay J on 27 January 2016, after some argument, orders were made which involved the payment into Court of the proceeds of that bank guarantee.

3. The orders made included:

7.    ORDER, subject to further order, that the bank guarantee proceeds are to be held in court until final determination by the court of the principal proceedings (including the cross-claim in those proceedings and any appeals from the principal proceedings) or until further order of the court). [sic]

…

10.    RESERVE to any party (including Bobos Engineering Pty Ltd (in liquidation)) liberty to apply to the court for payment out of the monies to be paid into court pursuant to these notations and orders.

4. There is also before this Court, albeit in different proceedings, a claim by Bobos Engineering against Cristal for damages, for breach of contract, a claim in quantum meruit and, apparently, a claim for misleading or unconscionable conduct. Cristal has also cross-claimed in those proceedings, which still have a long way to go before they are likely to be heard.

5. Today, the Court has before it two motions. The first is Cristal’s motion seeking that the monies paid into Court, pursuant to the orders earlier referred to, be paid out to it. That application is made on the basis that there could have been no entitlement of Bobos Engineering to restrain it from either calling on the guarantee or receiving and dealing with the proceeds. That is said to follow from the provisions of cl 5.5 of the building contract.

6. The second motion was filed on behalf of Mr Bobos, who is the principal of Bobos Engineering, and seeks an order that the motion for payment out of those monies be adjourned to “4 May 2016”. (Because such motions are heard in the Commercial List on Fridays, I treat this as intended to refer to 6 May 2016.) That application is made on the basis that he is seeking to reach agreement with the liquidator of Bobos Engineering for the assignment to him of the contractual and other claims, which are the subject of and made by the company in its separate proceedings against Cristal.

7. A meeting of the creditors of the company, which has been called to consider whether the liquidator should enter into that agreement, is to be held on 20 April 2016. In my view, the application to adjourn the motion for payment of the monies out of Court should be granted. My principal reason for doing so is that, on the face of order 7, the guarantee proceeds were to be held in Court until the final determination of the proceedings between Bobos Engineering and Cristal. The adjourning of the proceedings is consistent with the terms of that order.

8. There appears to be a dispute as to whether order 7 fairly reflects the understanding between the parties as to the basis on which the monies were originally paid into Court. I am not going to deal with that dispute today. If that dispute is maintained, the appropriate way for it to be resolved is for Cristal’s application to have the monies paid out of Court also address and seek to vary, to the extent necessary, order 7. There may or may not need to be evidence filed in support of that application.

9. Mr Christie SC, who appears for Cristal on the application today, also requests that any consideration as to the variation of order 7 be dealt with by the Judge who made that order, Lindsay J. I will not make any direction or express any view about that. I simply record that request so that the List Judge might take it into account when this matter is next before the Court for the hearing of Cristal’s motion, which will be, by acceding to the adjournment application, 6 May 2016.

10. Accordingly, I adjourn the hearing of Cristal’s motion to release the proceeds from Court to that date. The related proceedings between Cristal and Bobos Engineering should also be listed on 6 May 2016. I do not make any costs order in relation to the arguments which have occurred today.

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Decision last updated: 15 April 2016