Commonwealth Bank v Iinvest [2016] NSWSC 1846

Commonwealth Bank v Iinvest [2016] NSWSC 1846

Given the long history of the proceedings, the prior loss of hearing dates, the bank's position as secured creditor, and the limited time before the listed hearing, the hearing dates had to be preserved. No amendment should be permitted if it involved averment of material facts not already raised or would require the bank to marshal further evidence to meet a new case. Applying that principle, amendments that merely amplified or refined existing allegations were permitted, while amendments introducing new factual burdens or claims considered legally unavailable under the National Credit Code were rejected.

Jurisdiction
Australia
Judgment Date
14 December 2016
Procedural Posture
Civil Procedure Application for Leave to File Fourth Amended Statement of Cross Claim in Possessions List Proceedings / Interlocutory Application Before Trial
Outcome
Application for leave to file a fourth amended statement of cross claim granted in part, with amendments permitted and rejected in accordance with the reasons.
Legal Topics
['amendment of Pleadings' 'case Management' 'preservation of Hearing Dates' 'unconscionability' 'national Credit Code' 'contracts Review Act' 'code of Banking Practice']
['civil Procedure' 'banking and Finance' 'consumer Credit' 'contracts'] ['amendment of Pleadings' 'case Management' 'preservation of Hearing Dates' 'unconscionability' 'national Credit Code' 'contracts Review Act' 'code of Banking Practice']

Case Brief

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Procedural Posture

Civil Procedure Application for Leave to File Fourth Amended Statement of Cross Claim in Possessions List Proceedings / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether the cross-claimants should have leave to file a fourth amended statement of cross claim shortly before the fixed hearing date.' 'Whether proposed amendments under the Contracts Review Act 1980 (NSW), the National Credit Code, and the Code of Banking Practice should be permitted.' 'Whether proposed amendments would introduce new material facts or require the bank to marshal further evidence before trial.' 'Whether preserving the hearing dates commencing on 30 January 2017 should govern the exercise of the discretion.']

Ratio Decidendi

Given the long history of the proceedings, the prior loss of hearing dates, the bank's position as secured creditor, and the limited time before the listed hearing, the hearing dates had to be preserved. No amendment should be permitted if it involved averment of material facts not already raised or would require the bank to marshal further evidence to meet a new case. Applying that principle, amendments that merely amplified or refined existing allegations were permitted, while amendments introducing new factual burdens or claims considered legally unavailable under the National Credit Code were rejected.

Court Disposition

Application for leave to file a fourth amended statement of cross claim granted in part, with amendments permitted and rejected in accordance with the reasons.

Orders

  • ['Fourth Amended Statement of Cross Claim to be filed in accordance with the reasons below by Friday 16 December 2016' 'Defence to amended statement of cross claim filed by 23 December 2016' 'Statement of particulars filed by Friday 23 December 2016' 'Any notice to produce to be served by 16/12/2106, may be...