Commonwealth Bank of Australia t/as Bankwest v Khoury [2013] NSWSC 1787

Commonwealth Bank of Australia t/as Bankwest v Khoury [2013] NSWSC 1787

The APRA certificate of transfer was a total transfer that came into force on 1 October 2012, so by operation of s 22(1) of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) CBA became Bankwest's successor in law and all Bankwest assets and liabilities became CBA's assets and liabilities without any transfer, conveyance or assignment. Alleged carve-out, claw-back or purchase price adjustments did not affect the specific loan agreements or the statutory transfer. The no-loss and unjust enrichment allegations were hopeless because CBA's claim was for possession arising from default and enforcement of the mortgage, not a claim for loss or damage. The challenged...

Jurisdiction
Australia
Judgment Date
04 December 2013
Procedural Posture
Common Law Interlocutory Application to Strike Out Parts of a Defence / Notice of Motion Filed 2 August 2013 Determined Under R 14.28(a) and (b) of the Uniform Civil Procedure Rules 2005
Outcome
Application granted; challenged paragraphs of the defence struck out and defendants ordered to pay plaintiffs' costs.
Legal Topics
['strike Out of Pleading' 'no Reasonable Defence' 'apra Certificate of Transfer' 'successor in Law Under Financial Sector (business Transfer and Group Restructure) Act 1999 (cth)' 'carve Out and Claw Back Allegations' 'no Loss Defence']
['civil Procedure' 'banking and Finance' 'mortgage Enforcement' 'statutory Interpretation'] ['strike Out of Pleading' 'no Reasonable Defence' 'apra Certificate of Transfer' 'successor in Law Under Financial Sector (business Transfer and Group Restructure) Act 1999 (cth)' 'carve Out and Claw Back Allegations' 'no Loss Defence']

Case Brief

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Procedural Posture

Common Law Interlocutory Application to Strike Out Parts of a Defence / Notice of Motion Filed 2 August 2013 Determined Under R 14.28(a) and (b) of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether paragraphs 2(b), 3(c), 3(d), 4, 5(a), 11 and 12 of the defence disclosed a reasonable defence or should be struck out under UCPR 14.28.' 'Whether the APRA certificate of transfer effected a valid total transfer so that CBA became successor in law to Bankwest under s 22(1) of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth).' 'Whether alleged carve-out, claw-back, price adjustment or tax deduction matters meant CBA had no recoverable debt or would be unjustly enriched.' 'Whether the impugned pleadings tended to cause prejudice, embarrassment or delay.']

Ratio Decidendi

The APRA certificate of transfer was a total transfer that came into force on 1 October 2012, so by operation of s 22(1) of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) CBA became Bankwest's successor in law and all Bankwest assets and liabilities became CBA's assets and liabilities without any transfer, conveyance or assignment. Alleged carve-out, claw-back or purchase price adjustments did not affect the specific loan agreements or the statutory transfer. The no-loss and unjust enrichment allegations were hopeless because CBA's claim was for possession arising from default and enforcement of the mortgage, not a claim for loss or damage. The challenged...

Court Disposition

Application granted; challenged paragraphs of the defence struck out and defendants ordered to pay plaintiffs' costs.

Orders

  • ['Paragraphs 2(b), 3(c), 3(d), 4, 5(a), 11 and 12 of the defence filed 5 July 2013 are struck out.' "The defendants are to pay the plaintiffs' costs as assessed or agreed."]