Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as BankWest [2017] NSWSC 1052

Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as BankWest [2017] NSWSC 1052

The Bank repudiated the release provision; however, its conduct was not unconscionable under ASIC Act s 12CB(1). Plaintiffs did not establish entitlement to release or prove they suffered loss or damage; the oral agreement claimed by Antonio was not established and lacked consideration.

Parties
First Plaintiff/first Cross Defendant: Carmelo Adriano Mastronardo; Second Plaintiff/second Cross Defendant: Claudia Alejandra Mastronardo; Defendant/cross Claimant: Commonwealth Bank of Australia trading as BankWest; Third Cross Defendant: Antonio Mastronardo; Fourth Cross Defendant: Via Sanantonio Pty Limited; Fifth Cross Defendant: AM Property Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
11 August 2017
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
Plaintiffs' claim dismissed. Judgment in favour of defendant for money sum and possession orders.
Legal Topics
Breach of Contract, Unconscionable Conduct, Guarantees, Banker and Customer, Loss and Damage
Equity Commercial Law Financial Services Breach of Contract Unconscionable Conduct Guarantees Banker and Customer Loss and Damage

Case Brief

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Parties

Carmelo Adriano Mastronardo

First Plaintiff/first Cross Defendant

Claudia Alejandra Mastronardo

Second Plaintiff/second Cross Defendant

Commonwealth Bank of Australia trading as BankWest

Defendant/cross Claimant

Antonio Mastronardo

Third Cross Defendant

Via Sanantonio Pty Limited

Fourth Cross Defendant

AM Property Investments Pty Ltd

Fifth Cross Defendant

Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 Whether the Bank breached a contractual release provision
  2. 2 Whether the Bank engaged in unconscionable conduct under ASIC Act s 12CB(1)
  3. 3 Whether plaintiffs suffered loss and damage from breach or unconscionable conduct

Ratio Decidendi

The Bank repudiated the release provision; however, its conduct was not unconscionable under ASIC Act s 12CB(1). Plaintiffs did not establish entitlement to release or prove they suffered loss or damage; the oral agreement claimed by Antonio was not established and lacked consideration.

Court Disposition

Plaintiffs' claim dismissed. Judgment in favour of defendant for money sum and possession orders.

Orders

  • Money judgments against Adrian and Claudia under Mastronardo facility and as guarantors under Remo facility to full extent of guarantees; order for possession of 8 and 8A Pile St.
  • Money judgment against Via Sanantonio Pty Limited as guarantor of Remo facility and order for possession of Coonarr Beach.