Charan v Commonwealth Bank of Australia & Ors [2014] NSWSC 1473

Charan v Commonwealth Bank of Australia & Ors [2014] NSWSC 1473

The pleaded and foreshadowed claims, except possible matters concerning an account or equitable damages against the Bank, did not disclose any arguable cause of action. The caveat and transfer complaints were legally misconceived, the trustees were not obliged to apply rental income to the secured mortgage debt, any beneficial interest claim in bankrupt property belonged in bankruptcy jurisdiction, and the plaintiff suffered no arguable loss from the refusal to sell the properties to his sons at undervalue. The proceedings were therefore summarily dismissed, without prejudice to any right to pursue specified account or equitable damages claims against the Bank.

Jurisdiction
Australia
Judgment Date
08 October 2014
Procedural Posture
Practice and Procedure; Mortgagee Power of Sale; Bankruptcy Trustees; Costs / Applications to Strike Out Statement of Claim and for Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), and Costs Application
Outcome
Proceedings dismissed without prejudice to specified possible claims against the first defendant; second and third defendants awarded ordinary costs fixed at $7,500; indemnity costs refused.
Legal Topics
['summary Dismissal' 'strike Out' 'mortgagee in Possession' 'mortgagee Power of Sale' 'surplus Proceeds of Sale' 'trustees in Bankruptcy' 'caveats' 'indemnity Costs' 'gross Sum Costs']
['civil Procedure' 'bankruptcy' 'real Property' 'mortgages' 'costs'] ['summary Dismissal' 'strike Out' 'mortgagee in Possession' 'mortgagee Power of Sale' 'surplus Proceeds of Sale' 'trustees in Bankruptcy' 'caveats' 'indemnity Costs' 'gross Sum Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Mortgagee Power of Sale; Bankruptcy Trustees; Costs / Applications to Strike Out Statement of Claim and for Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), and Costs Application

Legal Issues

  1. 1 ["Whether the plaintiff's statement of claim and affidavit disclosed any arguable cause of action against the Bank or the trustees in bankruptcy." 'Whether the plaintiff should have liberty to replead claims concerning an account, equitable damages, mortgagee in possession conduct, power of sale, or surplus proceeds.' 'Whether alleged lapsing of caveats deprived the trustees in bankruptcy of their interests in the land.' 'Whether trustees in bankruptcy were obliged to apply rental income toward the secured mortgage debt.' "Whether the Bank or trustees were liable for not facilitating sales of the properties to the plaintiff's sons at proposed lower prices." 'Whether the second and third defendants should receive indemnity costs and costs fixed as a gross sum.']

Ratio Decidendi

The pleaded and foreshadowed claims, except possible matters concerning an account or equitable damages against the Bank, did not disclose any arguable cause of action. The caveat and transfer complaints were legally misconceived, the trustees were not obliged to apply rental income to the secured mortgage debt, any beneficial interest claim in bankrupt property belonged in bankruptcy jurisdiction, and the plaintiff suffered no arguable loss from the refusal to sell the properties to his sons at undervalue. The proceedings were therefore summarily dismissed, without prejudice to any right to pursue specified account or equitable damages claims against the Bank.

Court Disposition

Proceedings dismissed without prejudice to specified possible claims against the first defendant; second and third defendants awarded ordinary costs fixed at $7,500; indemnity costs refused.

Orders

  • ['Order that the proceedings be dismissed.' 'Order (1) is made without prejudice to any right the plaintiff might have to claim an account or equitable damages against the first defendant in respect of the first defendant\'s conduct as mortgagee in possession of the properties referred to in paragraphs 1 and 4 of...