Commonwealth Bank of Australia v IInvest Pty Limited (in liquidation) (No 9) [2018] NSWSC 1276

Commonwealth Bank of Australia v IInvest Pty Limited (in liquidation) (No 9) [2018] NSWSC 1276

The Bank is entitled to possession of the properties as iInvest’s liquidation constituted an act of default per the mortgage and facility terms, giving rise to enforcement rights without need for further notice. The Guarantee was validly extended to $3.438 million plus costs, and personal liability is established. No grounds were found for granting relief under the cross-claim, including rectification, statutory, or equitable remedies; no unconscionable or misleading conduct was established, and statutory mediation and review mechanisms were either complied with or not applicable to defeat the Bank's claim.

Jurisdiction
Australia
Judgment Date
17 August 2018
Procedural Posture
Principal Judgment / Final Determination After Full Hearing
Outcome
Judgment for the plaintiff
Legal Topics
['contract Formation' 'remedies for Debt' 'lawful Termination' 'possession of Property' 'guarantee Liability' 'mortgage Enforcement' 'farm Debt Mediation' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'good Faith in Banking']
['contract' 'guarantee and Indemnity' 'land Law' 'banking and Finance' 'insolvency'] ['contract Formation' 'remedies for Debt' 'lawful Termination' 'possession of Property' 'guarantee Liability' 'mortgage Enforcement' 'farm Debt Mediation' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'good Faith in Banking']

Case Brief

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Procedural Posture

Principal Judgment / Final Determination After Full Hearing

Legal Issues

  1. 1 ['Whether the plaintiff (Bank) is entitled to possession of two rural properties due to default by iInvest Pty Ltd (in liquidation)' 'Whether the Guarantee provided by James Harker-Mortlock is enforceable and the extent of liability' 'Whether rectification and other reliefs sought under cross-claim are available (including under the Contracts Review Act, ASIC Act, Code of Banking Practice, Farm Debt Mediation Act and at general law)' 'Whether the Bank engaged in unconscionable conduct, or misleading or deceptive conduct']

Ratio Decidendi

The Bank is entitled to possession of the properties as iInvest’s liquidation constituted an act of default per the mortgage and facility terms, giving rise to enforcement rights without need for further notice. The Guarantee was validly extended to $3.438 million plus costs, and personal liability is established. No grounds were found for granting relief under the cross-claim, including rectification, statutory, or equitable remedies; no unconscionable or misleading conduct was established, and statutory mediation and review mechanisms were either complied with or not applicable to defeat the Bank's claim.

Court Disposition

Judgment for the plaintiff

Orders

  • ['Judgment for the plaintiff for possession of land in folio identifier 2/1166883, 1380 Cooks Hill Road, Yass, NSW.' 'Judgment for the plaintiff for possession of land in folio identifier 1/1105157,1205 Cooks Hill Road, Yass, NSW.' 'Declaration that the plaintiff is entitled to judgment against the second defendant...