Sherwood v Commonwealth Bank of Australia [2015] FCA 1403

Relief from the implied undertaking was appropriate due to the relevance of documents to NSW proceedings, absence of prejudice or objection, the context of settlement, and the efficient administration of justice. Regarding recalculation of settlement sums, orders were made to correct payment errors in a manner consistent with the settlement deed, causing no party prejudice. Costs of interlocutory applications were ordered to be borne individually by parties due to mutual oversight and deed stipulation.

Parties: First Applicant: Leslie James Sherwood; Second Applicant: Julianne Sherwood; Third Applicant: Sean Patrick Jude McArdle; Fourth Applicant: Paula Joanne McArdle; First Respondent: Commonwealth Bank of Australia (ABN 48 123 123 124); Second Respondent: Colonial First State Investments Ltd (ABN 98 002 348 352); Plaintiff: Australian Securities and Investments Commission; First Defendant: Storm Financial Limited (Receivers and Managers Appointed) (In Liquidation) ACN 064 804 691; Second Defendant: Commonwealth Bank of Australia (ACN 123 123 124); Third Defendant: Bank of Queensland Limited ACN 009 656 740; Fourth Defendant: Macquarie Bank Limited ACN 008 583 542
Jurisdiction: Australia
Judgment Date: 08 December 2015
Procedural Posture: Representative Proceedings and Interlocutory Applications / Post Settlement Interlocutory Orders
Outcome: Interlocutory relief and orders granted as sought; leave given to use certain documents, recalculation of settlement payments ordered, and each party to bear its own costs.
Legal Topics: Implied Undertakings in Litigation, Relief From Implied Undertakings, Representative Proceedings, Settlement Administration, Costs

Practice and Procedure Corporations Law Banking and Finance Implied Undertakings in Litigation Relief From Implied Undertakings Representative Proceedings Settlement Administration Costs

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 5 Authorities cited 8 Party arguments 2 Amounts and remedies 6

Parties

Leslie James Sherwood

First Applicant

Julianne Sherwood

Second Applicant

Sean Patrick Jude McArdle

Third Applicant

Paula Joanne McArdle

Fourth Applicant

Commonwealth Bank of Australia (ABN 48 123 123 124)

First Respondent

Colonial First State Investments Ltd (ABN 98 002 348 352)

Second Respondent

Australian Securities and Investments Commission

Plaintiff

Storm Financial Limited (Receivers and Managers Appointed) (In Liquidation) ACN 064 804 691

First Defendant

Commonwealth Bank of Australia (ACN 123 123 124)

Second Defendant

Bank of Queensland Limited ACN 009 656 740

Third Defendant

Macquarie Bank Limited ACN 008 583 542

Fourth Defendant

Procedural Posture

Representative Proceedings and Interlocutory Applications / Post Settlement Interlocutory Orders

Legal Issues

1 Whether relief should be granted from the implied undertaking (Harman principle) regarding documents produced under compulsion for use in NSW proceedings
2 Whether orders should issue to address calculation errors in settlement payments to group members
3 Who should bear the costs of interlocutory applications relating to settlement administration

Ratio Decidendi

Court Disposition

Interlocutory relief and orders granted as sought; leave given to use certain documents, recalculation of settlement payments ordered, and each party to bear its own costs.

Orders

The Commonwealth Bank of Australia and plaintiffs in NSW Proceedings have leave to use specified Storm Financial Limited documents for purposes of NSW Proceedings.
CBA to recalculate ASIC Interest Amount and Moratorium Interest Amount for ASIC Client Code YELADA5334; Net Interest Amount increased by $34,556.10 to $198,629.19.