Shah v Commonwealth Bank of Australia (No. 2) [2016] NSWSC 592

Shah v Commonwealth Bank of Australia (No. 2) [2016] NSWSC 592

Summary judgment was refused because the Bank moved before any evidence had been filed, and it would be unfair to dismiss the proceedings if the plaintiff could properly plead and prove direct knowledge by the Bank amounting to unconscionable conduct. However, paragraphs 34 to 37 of the Statement of Claim were struck out because paragraph 36 was unsatisfactory by reason of its generality and did not clearly state the basis on which the Bank allegedly knew of the conflict of interest and preference of the husband's interests.

Jurisdiction
Australia
Judgment Date
10 May 2016
Procedural Posture
Equity Proceedings Concerning Avoidance of a Deed of Settlement and Guarantees; Defendant's Motion for Summary Dismissal or Strike Out / Interlocutory Motion Under Uniform Civil Procedure Rules 2005, Rr 13.4 and 14.28
Outcome
Summary judgment not granted; paragraphs 34 to 37 of the Statement of Claim struck out with leave to re-plead; plaintiff directed to file evidence; costs reserved as successful party's costs in the proceedings.
Legal Topics
['summary Judgment' 'strike Out of Pleadings' 'leave to Re Plead' 'guarantees' 'deed of Settlement' 'unconscionable Conduct' 'conflict of Interest' 'contracts Review Act']
['civil Procedure' 'equity' 'banking and Finance' 'contracts'] ['summary Judgment' 'strike Out of Pleadings' 'leave to Re Plead' 'guarantees' 'deed of Settlement' 'unconscionable Conduct' 'conflict of Interest' 'contracts Review Act']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Avoidance of a Deed of Settlement and Guarantees; Defendant's Motion for Summary Dismissal or Strike Out / Interlocutory Motion Under Uniform Civil Procedure Rules 2005, Rr 13.4 and 14.28

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under Uniform Civil Procedure Rules 2005, r 13.4.' 'Whether paragraphs of the Statement of Claim should be struck out under Uniform Civil Procedure Rules 2005, r 14.28.' 'Whether the plaintiff should have leave to re-plead allegations that the Bank knew of a conflict of interest and took advantage of it in accepting the settlement.' "Whether the plaintiff's case alleged direct knowledge by the Bank going beyond a mere failure to enquire."]

Ratio Decidendi

Summary judgment was refused because the Bank moved before any evidence had been filed, and it would be unfair to dismiss the proceedings if the plaintiff could properly plead and prove direct knowledge by the Bank amounting to unconscionable conduct. However, paragraphs 34 to 37 of the Statement of Claim were struck out because paragraph 36 was unsatisfactory by reason of its generality and did not clearly state the basis on which the Bank allegedly knew of the conflict of interest and preference of the husband's interests.

Court Disposition

Summary judgment not granted; paragraphs 34 to 37 of the Statement of Claim struck out with leave to re-plead; plaintiff directed to file evidence; costs reserved as successful party's costs in the proceedings.

Orders

  • ["Dismiss paragraph 1 of the defendant's motion of 27 November 2015." "In relation to the relief sought in paragraph 2 of the motion, strike out the current Statement of Claim, paragraphs 34 to 37 and give leave for them to be re-pleaded, so as to make clear precisely on what basis it is alleged that the defendant...