Bank of Western Australia Ltd v Tannous (No. 4) [2013] NSWSC 182

Supreme Court New South Wales

Medium Neutral Citation: Bank of Western Australia Ltd v Tannous (No. 4) [2013] NSWSC 182 Hearing dates: 12 & 13 November 2012 Decision date: 13 March 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss FMA's Notice of Motion filed 26 June 2012. (2) On the Second Defendant's Amended Notice of Motion filed 27 September 2012 set aside the judgment entered by Davies J on 3 December 2010 and in lieu order that the First Cross-Claim be dismissed with costs. (3) On FMA's Notice of Motion filed 16 October 2012: (a) Dismiss the causes of action contained in paragraphs 24 to 29 and 43 to 72 of the Amended Fourth Cross-Claim filed 12 June 2012; (b) Strike out the remaining paragraphs of the Amended Fourth Cross-Claim with leave to re-plead the matters contained in those paragraphs. (c) Any Further Amended Fourth Cross-Claim is to be filed and served within 14 days. Catchwords: PROCEDURE - judgments - varying and setting aside - judgment on cross-claim following summary dismissal application - whether final - whether principle in Anshun precluded further cross-claim - abuse of process - slip rule - unintended consequences of judgment Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Civil Procedure Act 2005 Consumer Credit Code Contracts Review Act 1980 Corporations Act 2001 (Cth) Fair Trading Act 1987 Real Property Act 1900 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319 Bank of Western Australia Ltd v Tannous [2012] NSWSC 559 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Cameron v Cole (1944) 68 CLR 571 D A Christie Pty Ltd v Baker (1996) 2 VR 582 Fletcher v Besser [2010] NSWCA 30 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldmman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 Nominal Defendant v Manning [2000] NSWCA 80 Re Luck [2003] HCA 70; (2003) 203 ALR 1 Welker v Rinehart (No 6) [2012] NSWSC 160 Wickstead v Browne (1992) 30 NSWLR 1 Zakaria v Dr Noyce [2012] NSWSC 981 Category: Interlocutory applications Parties: Bank of Western Australia Ltd (Plaintiff) Arthur Tannous (First Defendant) Emily Tannous (also known as Emiley Tannous) (Second Defendant/Cross-Claimant) Ing Bank (Australia) Limited (First Cross-Defendant to Second Cross-Claim; Third Cross-Defendant to Third Cross-Claim) Firstfolio Mortgages Australia Pty Ltd (Second Cross-Defendant to First Cross-Claim; Second Cross-Defendant to Third Cross-Claim) Registrar General of NSW (Second Cross-Defendant to Second Cross-Claim) Representation: No appearance (Plaintiff) MBJ Lee SC & A Rao (Firstfolio Mortgages Australia Pty Ltd) No appearance (First Defendant) D R Pritchard SC (Second Defendant) No appearance (Third Defendant) Henry Davis York (Plaintiff) Donnelly Lawyers (First Defendant) Good Legal Lawyers (Second Defendant) Gadens Lawyers (ING and Firstfolio Mortgages Australia Pty Ltd) Solicitor for the Registrar General File Number(s): 2009/292096 Decision under appeal Citation: Bank of Western Australia Ltd v Tannous [2012] NSWSC 559 Date of Decision: 2012-05-29 00:00:00 Before: Harrison AsJ File Number(s): 2009/292096