Commonwealth Bank of Australia v Segal (No 2) [2015] NSWSC 656

Commonwealth Bank of Australia v Segal (No 2) [2015] NSWSC 656

Exhibit 4 was the original mandate for operation of the second VLOC, signed by Dr Segal and Mr Barel when it contained the instruction that the account could be operated by one signature. Dr Segal was bound by that signed authority, and the contract did not require joint signatures. The Court was not satisfied that any contrary oral instruction was given or that any bank officer represented that a two-signature requirement would be implemented. The contractual claim and the alternative statutory misleading conduct claim therefore failed. Because the bank could have recourse to retained funds in which Mr Barel had a contingent one-half interest, Mr Barel was re-joined and Dr Segal was...

Jurisdiction
Australia
Judgment Date
29 May 2015
Procedural Posture
Cross Claim in Possession Proceedings / Principal Judgment After Hearing, Including Application by Mr Barel to Be Re Joined
Outcome
Judgment for the first cross defendant against the cross claimant on the cross claim; Mr Barel re-joined as second cross defendant for costs purposes.
Legal Topics
['identification of Contract Terms' 'bank Account Operating Authority' 'alleged Breach of Account Instructions' 'misleading or Deceptive Conduct' 'joinder of Parties' 'costs Indemnity']
['contract' 'banking' 'consumer Law' 'civil Procedure' 'costs'] ['identification of Contract Terms' 'bank Account Operating Authority' 'alleged Breach of Account Instructions' 'misleading or Deceptive Conduct' 'joinder of Parties' 'costs Indemnity']

Case Brief

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Procedural Posture

Cross Claim in Possession Proceedings / Principal Judgment After Hearing, Including Application by Mr Barel to Be Re Joined

Legal Issues

  1. 1 ['Whether it was a term of the contract for the second Viridian Line of Credit that cheques had to be co-signed by Dr Segal and Mr Barel.' 'If two signatures were not a contractual term, whether the bank breached s 18 Australian Consumer Law or s 12DA Australian Securities and Investment Commission Act 2001 (Cth) by representing that instructions requiring two signatures would be implemented.' 'If the bank breached any contractual or statutory obligation, what damages Dr Segal would be entitled to.' 'Whether Mr Barel should be re-joined to protect his interest in retained sale surplus funds and what costs order should be made.']

Ratio Decidendi

Exhibit 4 was the original mandate for operation of the second VLOC, signed by Dr Segal and Mr Barel when it contained the instruction that the account could be operated by one signature. Dr Segal was bound by that signed authority, and the contract did not require joint signatures. The Court was not satisfied that any contrary oral instruction was given or that any bank officer represented that a two-signature requirement would be implemented. The contractual claim and the alternative statutory misleading conduct claim therefore failed. Because the bank could have recourse to retained funds in which Mr Barel had a contingent one-half interest, Mr Barel was re-joined and Dr Segal was...

Court Disposition

Judgment for the first cross defendant against the cross claimant on the cross claim; Mr Barel re-joined as second cross defendant for costs purposes.

Orders

  • ['Mr Barel is re-joined to the proceedings as second cross defendant to this cross claim.' 'Judgment for the first cross defendant against the cross claimant on the cross claim.' 'The cross claimant is to pay the first cross defendants costs of and incidental to the cross claim forthwith and on the ordinary basis...