Charan v Commonwealth Bank of Australia [2019] NSWSC 1245

Charan v Commonwealth Bank of Australia [2019] NSWSC 1245

The proceedings were dismissed because they were a fourth attempt to litigate the same substantive complaint about the alleged wrongful possession and sale of the Casula and Holsworthy properties, were oppressive and vexatious, and disclosed no sustainable personal-wrong claim. The asserted personal wrong was merely a new characterisation of property and financial loss arising from the bank's enforcement of its mortgages, so any such causes of action were not excluded from the bankrupt estates under Sections 60(4)(a) or 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth). The further contention that the properties did not vest in trustees had already been addressed and determined, and...

Jurisdiction
Australia
Judgment Date
23 September 2019
Procedural Posture
Equity Proceedings Concerning Alleged Wrongful Possession and Sale of Mortgaged Properties and Claimed Compensation / Summary Dismissal Under UCPR Rule 13.4
Outcome
Proceedings dismissed
Legal Topics
['summary Dismissal' 'abuse of Process' 'no Arguable Cause of Action' 're Litigation' 'personal Wrong to a Bankrupt' 'mortgagee Power of Sale']
['civil Procedure' 'insolvency' 'bankruptcy' 'equity' 'property'] ['summary Dismissal' 'abuse of Process' 'no Arguable Cause of Action' 're Litigation' 'personal Wrong to a Bankrupt' 'mortgagee Power of Sale']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Alleged Wrongful Possession and Sale of Mortgaged Properties and Claimed Compensation / Summary Dismissal Under UCPR Rule 13.4

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed as an abuse of process and as disclosing no arguable cause of action because they repeated claims previously dismissed.' "Whether the plaintiffs' claims for compensation for a personal wrong fell within the exceptions in Sections 60(4)(a) and 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth)." 'Whether the plaintiffs should be restrained from commencing further proceedings arising from the same subject matter without leave and without paying costs.']

Ratio Decidendi

The proceedings were dismissed because they were a fourth attempt to litigate the same substantive complaint about the alleged wrongful possession and sale of the Casula and Holsworthy properties, were oppressive and vexatious, and disclosed no sustainable personal-wrong claim. The asserted personal wrong was merely a new characterisation of property and financial loss arising from the bank's enforcement of its mortgages, so any such causes of action were not excluded from the bankrupt estates under Sections 60(4)(a) or 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth). The further contention that the properties did not vest in trustees had already been addressed and determined, and...

Court Disposition

Proceedings dismissed

Orders

  • ['The statement of claim be dismissed pursuant to UCPR Rule 13.4 against each of the defendants.' "The plaintiffs pay the first defendant's costs of this proceeding in the lump sum of $18,000.00." "The plaintiffs pay the second and third defendants' costs of this proceeding in the lump sum of $17,000.00." "The...