C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia [2013] NSWSC 256

C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia [2013] NSWSC 256

The Bank's motion for summary judgment fails, as the claim is not plainly hopeless and the dispute turns on factual issues not suitable for summary determination. However, the plaintiffs' statement of claim does not sufficiently plead facts to ground a cause of action for breach of the Bank's duties as mortgagee, particularly under Corporations Act s 420A, and is struck out with leave to replead. A stay of enforcement of the consent judgments is granted pending the delivery of an amended pleading, given the direct connection between the cross-claim and judgment debt.

Parties
First Plaintiff: C2C Investments Pty Limited; Second Plaintiff: C2C Developments Pty Limited; Third Plaintiff: Geoffrey Anthony Shannon; Fourth Plaintiff: Linda Shannon; Defendant: Commonwealth Bank of Australia
Jurisdiction
Australia
Judgment Date
27 March 2013
Procedural Posture
Interlocutory Application / Hearing of Strike Out and Stay Motions
Outcome
Bank's summary judgment motion dismissed; statement of claim struck out with leave to replead; stay granted on consent judgments; further directions issued.
Legal Topics
Summary Judgment, Strike Out of Pleadings, Stay of Judgment, Mortgagee Duties, Account and Damages, Res Judicata, Solicitor Conflict of Interest
Civil Procedure Banking and Finance Corporate Law Summary Judgment Strike Out of Pleadings Stay of Judgment Mortgagee Duties Account and Damages +2 more

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Parties

C2C Investments Pty Limited

First Plaintiff

C2C Developments Pty Limited

Second Plaintiff

Geoffrey Anthony Shannon

Third Plaintiff

Linda Shannon

Fourth Plaintiff

Commonwealth Bank of Australia

Defendant

Procedural Posture

Interlocutory Application / Hearing of Strike Out and Stay Motions

Legal Issues

  1. 1 Whether the statement of claim discloses a reasonable cause of action for breach of mortgagee's duty under Corporations Act s 420A
  2. 2 Whether pursuit of new account proceedings is abuse of process or res judicata due to previous proceedings
  3. 3 Whether the Court should stay enforcement of consent judgments pending resolution of cross-claim

Ratio Decidendi

The Bank's motion for summary judgment fails, as the claim is not plainly hopeless and the dispute turns on factual issues not suitable for summary determination. However, the plaintiffs' statement of claim does not sufficiently plead facts to ground a cause of action for breach of the Bank's duties as mortgagee, particularly under Corporations Act s 420A, and is struck out with leave to replead. A stay of enforcement of the consent judgments is granted pending the delivery of an amended pleading, given the direct connection between the cross-claim and judgment debt.

Court Disposition

Bank's summary judgment motion dismissed; statement of claim struck out with leave to replead; stay granted on consent judgments; further directions issued.

Orders

  • Strike out the plaintiffs' statement of claim in Account Proceedings.
  • Grant leave to plaintiffs (Developments and Mr Shannon) to replead within 28 days.