Walton v Commonwealth Bank of Australia [2020] NSWCA 191

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Walton v Commonwealth Bank of Australia [2020] NSWCA 191 Hearing dates: 25 June 2020 Date of orders: 25 August 2020 Decision date: 25 August 2020 Before: Basten JA at [1]; Macfarlan JA at [31]; White JA at [32] Decision: 1 Refuse the applicants leave to appeal from the judgment of the Common Law Division. 2 Dismiss the amended summons with costs. Catchwords: CIVIL PROCEDURE – discontinuance – costs – no consent to discontinue without paying costs – plaintiff sought leave to discontinue with no order as to costs – proceedings lacking practical utility – both defendants impecunious – defendants' cross-claim abandoned – no right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff – litigation had begun to "feed on itself" – Uniform Civil Procedure Rules 2005 (NSW), r 12.1 COSTS – discontinuance – usual rule that discontinuing party pay defendant's costs – power to order otherwise – plaintiff sought leave to discontinue with no order as to costs – Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2) Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 12GM Civil Procedure Act 2005 (NSW), Pt 6 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 28.2, r 42.19 Cases Cited: Bank of Western Australia v Daleport [2010] NSWSC 1207 Be Financial Pty Ltd as trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Bitannia Pty Ltd v Parkline Construction Pty Ltd [2009] NSWCA 32 Edwards v Adam [2016] NSWSC 1534 Genworth Financial Mortgage Insurance Pty Ltd v Hodder Rook & Associates Pty Ltd [2017] NSWSC 640 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Category: Principal judgment Parties: Alexander Raymond Walton (First Applicant) Daleport Pty Ltd (Second Applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: Ms N Obrart (Applicants) Mr T D Castle (Respondent)