Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) (No 2) [2014] NSWSC 1640

Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) (No 2) [2014] NSWSC 1640

The application to set aside the orders of 15 September 2014 for denial of natural justice was refused as the rule of law relied upon was fundamental and uncontroversial, and the parties had ample opportunity regarding the legal instruments in question. However, the second application to set aside the default judgment was allowed, as new affidavit evidence adduced by Mr Harker-Mortlock established an arguable case for rectification of the trust declarations. The Bank's arguments did not justify summary disposition, and factual issues—especially on clean hands and trustee competence—require resolution at trial.

Parties
Plaintiff: Commonwealth Bank of Australia; First Defendant: Iinvest Pty Ltd (In Liquidation); Second Defendant: James Harker Mortlock
Jurisdiction
Australia
Judgment Date
21 November 2014
Procedural Posture
Interlocutory Application / Application to Set Aside Judgment and Related Orders
Outcome
Orders of 15 September 2014 not set aside for natural justice, but default judgment for possession set aside and leave granted to file cross-claim and join parties.
Legal Topics
Application to Set Aside Judgment, Natural Justice, Rectification of Trust Deed, Standing of Beneficiaries, Default Judgment, Derivative Action
Civil Procedure Equity Trusts Contracts Application to Set Aside Judgment Natural Justice Rectification of Trust Deed Standing of Beneficiaries +2 more

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Parties

Commonwealth Bank of Australia

Plaintiff

Iinvest Pty Ltd (In Liquidation)

First Defendant

James Harker Mortlock

Second Defendant

Procedural Posture

Interlocutory Application / Application to Set Aside Judgment and Related Orders

Legal Issues

  1. 1 Whether orders of 15 September 2014 should be set aside for denial of natural justice
  2. 2 Whether default judgment for possession should be set aside in light of new evidence regarding rectification
  3. 3 Standing of a beneficiary to bring proceedings

Ratio Decidendi

The application to set aside the orders of 15 September 2014 for denial of natural justice was refused as the rule of law relied upon was fundamental and uncontroversial, and the parties had ample opportunity regarding the legal instruments in question. However, the second application to set aside the default judgment was allowed, as new affidavit evidence adduced by Mr Harker-Mortlock established an arguable case for rectification of the trust declarations. The Bank's arguments did not justify summary disposition, and factual issues—especially on clean hands and trustee competence—require resolution at trial.

Court Disposition

Orders of 15 September 2014 not set aside for natural justice, but default judgment for possession set aside and leave granted to file cross-claim and join parties.

Orders

  • Orders 1, 2, 3, 4, 5, 6, 8, 10, 11 and 13 of 15 September 2014 set aside.
  • Default judgment for plaintiff for possession of both properties set aside.