Khoury v Commonwealth Bank of Australia trading as Bankwest [2013] FCA 304

Khoury v Commonwealth Bank of Australia trading as Bankwest [2013] FCA 304

The proceedings were transferred because the Federal Court was satisfied under s 5(4)(b)(iii) of the Cross-vesting Act and s 12GK(2)(b) of the ASIC Act that it was in the interests of justice for the Supreme Court of New South Wales to determine them. The applicants' claims and the respondents' proposed possession proceedings concerned the same loan agreements and mortgage over the Dural Land, the Supreme Court could grant the relevant relief, and transfer was likely to lead to the most expeditious resolution of both the existing proceedings and the proposed possession proceedings. The restraint of sale application should therefore be dealt with by the Supreme Court, and the respondents...

Jurisdiction
Australia
Judgment Date
02 April 2013
Procedural Posture
Practice and Procedure; Cross Vesting Application to Transfer Proceedings to the Supreme Court of New South Wales / Interlocutory Applications Including Transfer Application, Restraint of Sale Application, and Costs of Strike Out Application
Outcome
Proceedings transferred to the Supreme Court of New South Wales; restraint of sale application not heard; respondents awarded costs of the strike out application.
Legal Topics
['transfer of Proceedings' 'interests of Justice' 'asic Act Claims' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'restraint of Sale of Mortgaged Land' 'costs of Interlocutory Application']
['practice and Procedure' 'cross Vesting' 'financial Services' 'banking' 'mortgage and Possession of Land'] ['transfer of Proceedings' 'interests of Justice' 'asic Act Claims' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'restraint of Sale of Mortgaged Land' 'costs of Interlocutory Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure; Cross Vesting Application to Transfer Proceedings to the Supreme Court of New South Wales / Interlocutory Applications Including Transfer Application, Restraint of Sale Application, and Costs of Strike Out Application

Legal Issues

  1. 1 ['Whether the proceedings should be transferred from the Federal Court to the Supreme Court of New South Wales under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or s 12GK of the Australian Securities and Investments Commission Act 2001 (Cth).' "Whether it was premature to transfer the proceedings before determining the applicants' application restraining sale of the Dural Land." 'Whether the respondents were entitled to costs of the strike out application filed on 30 November 2012.']

Ratio Decidendi

The proceedings were transferred because the Federal Court was satisfied under s 5(4)(b)(iii) of the Cross-vesting Act and s 12GK(2)(b) of the ASIC Act that it was in the interests of justice for the Supreme Court of New South Wales to determine them. The applicants' claims and the respondents' proposed possession proceedings concerned the same loan agreements and mortgage over the Dural Land, the Supreme Court could grant the relevant relief, and transfer was likely to lead to the most expeditious resolution of both the existing proceedings and the proposed possession proceedings. The restraint of sale application should therefore be dealt with by the Supreme Court, and the respondents...

Court Disposition

Proceedings transferred to the Supreme Court of New South Wales; restraint of sale application not heard; respondents awarded costs of the strike out application.

Orders

  • ['Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and s 2GK(1) of the Australian Securities and Investments Commission Act 2001 (Cth) these proceedings be transferred to the Supreme Court of New South Wales.' 'The cost of the application to transfer the proceedings to the Supreme...