Konings v Commonwealth Bank of Australia [2016] FCA 667

Konings v Commonwealth Bank of Australia [2016] FCA 667

The application was dismissed because the prospective applicants did not establish an evidentiary basis for a prima facie case for injunctive relief, and because any proposed Federal Court claim to reopen the transaction under the National Credit Code was, unless and until the Supreme Court judgment was set aside on appeal, bound to fail due to merger in that judgment. The Federal Court could not grant relief inconsistent with the existing Supreme Court judgment, particularly while appeal and stay applications were pending.

Jurisdiction
Australia
Judgment Date
02 June 2016
Procedural Posture
Urgent Application Before Start of a Proceeding for Injunctive Relief Under R 7.01 of the Federal Court Rules 2011 (cth) / Application Dismissed
Outcome
Urgent application before start of a proceeding dismissed with costs; prospective applicants released from undertaking to commence proceedings.
Legal Topics
['injunctive Relief Before Commencing Proceedings' 'national Credit Code' 'unjust Transactions' 'hardship' 'doctrine of Merger' 'abuse of Process' 'stay of Enforcement of Possession Order']
['civil Procedure' 'consumer Credit' 'commercial and Corporations'] ['injunctive Relief Before Commencing Proceedings' 'national Credit Code' 'unjust Transactions' 'hardship' 'doctrine of Merger' 'abuse of Process' 'stay of Enforcement of Possession Order']

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Procedural Posture

Urgent Application Before Start of a Proceeding for Injunctive Relief Under R 7.01 of the Federal Court Rules 2011 (cth) / Application Dismissed

Legal Issues

  1. 1 ['Whether the prospective applicants should be granted an injunction restraining enforcement of a Supreme Court of Western Australia possession order until 1 July 2016 or pending prospective Federal Court proceedings.' 'Whether the prospective applicants established a prima facie case for relief under the National Credit Code sufficient to support interlocutory injunctive relief.' 'Whether any rights to reopen the transaction under the National Credit Code had merged in the Supreme Court judgment unless and until that judgment was set aside on appeal.' 'Whether commencing or pursuing prospective Federal Court proceedings would be inconsistent with the existing Supreme Court judgment or constitute an abuse of process.']

Ratio Decidendi

The application was dismissed because the prospective applicants did not establish an evidentiary basis for a prima facie case for injunctive relief, and because any proposed Federal Court claim to reopen the transaction under the National Credit Code was, unless and until the Supreme Court judgment was set aside on appeal, bound to fail due to merger in that judgment. The Federal Court could not grant relief inconsistent with the existing Supreme Court judgment, particularly while appeal and stay applications were pending.

Court Disposition

Urgent application before start of a proceeding dismissed with costs; prospective applicants released from undertaking to commence proceedings.

Orders

  • ['The urgent application before start of a proceeding dated 20 May 2016 be dismissed.' 'The prospective applicants be relieved from their undertaking to commence the proceeding.' "The prospective applicants pay the prospective respondent's costs of this application, to be assessed if not agreed."]