Charan v Commonwealth Bank of Australia [2015] NSWCA 364

Charan v Commonwealth Bank of Australia [2015] NSWCA 364

Leave to appeal was refused because the applicants did not identify any arguable error by McDougall J. Their complaints about beneficial interests and divisible property did not undermine the trial judge's reasoning; the caveat issue had already been dealt with in earlier proceedings and the lapsing of a caveat did not remove any estate or interest; and s 420A of the Corporations Act 2001 (Cth) was based on a misconception because the properties were not property of a corporation.

Jurisdiction
Australia
Judgment Date
19 November 2015
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of Mc Dougall J in the Supreme Court, Equity Division Dismissing Statements of Claim
Outcome
Application for leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'mortgagee Power of Sale' 'trustees in Bankruptcy' 'divisible Property' 'caveat Lapsing' 'controller Under Corporations Act']
['appeal' 'bankruptcy' 'real Property' 'mortgages' 'corporations'] ['leave to Appeal' 'mortgagee Power of Sale' 'trustees in Bankruptcy' 'divisible Property' 'caveat Lapsing' 'controller Under Corporations Act']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of Mc Dougall J in the Supreme Court, Equity Division Dismissing Statements of Claim

Legal Issues

  1. 1 ["Whether the properties were bankrupts' divisible properties that vested in the trustees pursuant to ss 58 and 116 of the Bankruptcy Act 1966 (Cth)." "Whether the trustees were entitled to transfer legal title with knowledge of the beneficiary's ownership entitlement pursuant to s 90 of the Real Property Act 1900 (NSW)." "Whether the mortgagee improperly exercised its power of sale by wilfully and recklessly sacrificing the mortgagor's interest in the properties pursuant to s 420A of the Corporations Act 2001 (Cth)." 'Whether any arguable error was shown in the decision of McDougall J dismissing the proceedings.']

Ratio Decidendi

Leave to appeal was refused because the applicants did not identify any arguable error by McDougall J. Their complaints about beneficial interests and divisible property did not undermine the trial judge's reasoning; the caveat issue had already been dealt with in earlier proceedings and the lapsing of a caveat did not remove any estate or interest; and s 420A of the Corporations Act 2001 (Cth) was based on a misconception because the properties were not property of a corporation.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Dismiss the application for leave to appeal.' "Order the first applicant to pay the respondents' costs of the application."]