Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109

Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109

The plaintiffs' claim depended on the Bank's silence and omissions being treated as acceptance of an uninvited proposed contract. That proposition was clearly untenable under the common law principles concerning acceptance by silence. The tendered promissory note did not, of itself, discharge the plaintiffs' mortgage or loan liabilities. The plaintiffs therefore had no prospects of success and the proceedings were summarily dismissed.

Jurisdiction
Australia
Judgment Date
15 August 2016
Procedural Posture
Civil Proceedings for Alleged Breach of Contract Claiming Liquidated Damages / Defendants' Application for Summary Dismissal Under R 13.4 Uniform Civil Procedure Rules 2005
Outcome
Proceedings dismissed generally; plaintiffs ordered to pay the defendants' costs.
Legal Topics
['summary Dismissal' 'accord and Satisfaction' 'promissory Note' 'silent Acceptance of Offer' 'liquidated Damages and Penalties' 'mortgage Debt']
['civil Practice and Procedure' 'contract Law' 'banking and Finance'] ['summary Dismissal' 'accord and Satisfaction' 'promissory Note' 'silent Acceptance of Offer' 'liquidated Damages and Penalties' 'mortgage Debt']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceedings for Alleged Breach of Contract Claiming Liquidated Damages / Defendants' Application for Summary Dismissal Under R 13.4 Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ["Whether the plaintiffs' claim had a real, not fanciful, prospect of success for the purposes of summary dismissal under r 13.4 Uniform Civil Procedure Rules 2005." "Whether the Bank accepted the plaintiffs' proposed contract by failing to return or reject the documents and failing to present the promissory note for payment." "Whether tender of the promissory note discharged the plaintiffs' liability under the mortgage or loan agreement."]

Ratio Decidendi

The plaintiffs' claim depended on the Bank's silence and omissions being treated as acceptance of an uninvited proposed contract. That proposition was clearly untenable under the common law principles concerning acceptance by silence. The tendered promissory note did not, of itself, discharge the plaintiffs' mortgage or loan liabilities. The plaintiffs therefore had no prospects of success and the proceedings were summarily dismissed.

Court Disposition

Proceedings dismissed generally; plaintiffs ordered to pay the defendants' costs.

Orders

  • ['Under Rule 13.4 Uniform Civil Procedure Rules 2005 the proceedings are dismissed generally.' "The plaintiffs are to pay the defendants' costs."]