Commonwealth Bank of Australia v Geoffrey Anthony Shannon [2013] NSWSC 1076

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Geoffrey Anthony Shannon [2013] NSWSC 1076 Hearing dates: 21, 22, 23, 24, 27, 28, 31 May, 3, 4, 5, 6, 7, 11, 12, 13 June 2013, oral submissions 16 July 2013, further written submissions 17 July 2013 Decision date: 12 August 2013 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [307] Catchwords: CONTRACTS - repudiation - whether bank repudiated facility agreement - whether alleged failure by the bank to pay GST component of drawdown amount was repudiatory - whether alleged statement by a bank employee that the bank "wanted out" was repudiatory - whether repudiation accepted - whether borrower's conduct amounted to event of default - whether bank entitled not to make further payments under the facility - whether bank is relying on its own wrongdoing.

CORPORATIONS - duties of mortgagee when selling corporate property - whether the bank contravened s 420A of the Corporations Act by failing to take all reasonable care to sell property for not less than its market value - whether advertisement as "mortgagee sale" was in contravention of s 420A - whether alleged delay in dealing with alleged prospective purchaser amounted to a breach of s 420A.

CORPORATIONS - unconscionable conduct under the Australian Securities and Investments Commission Act 2001 - whether the bank engaged in unconscionable conduct under s 12CC.

BANKING AND FINANCE - whether Code of Banking Practice applies - whether bank breached Code of Banking Practice - effect of breach of Code of Banking Practice. Legislation Cited: Evidence Act 1995 Australian Securities and Investments Commission Act 2001 (Cth) Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) Cases Cited: Attorney General of New South Wales v World Best Holdings Limited (2005) 63 NSWLR 557 Commonwealth Bank of Australia v Starrs [2012] SASC 222 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Florgale Uniforms Pty Limited v Orders (2004) 187 FLR 142 GE Capital Australia v Davis (2002) 180 FLR 250 Hallifax Property Corp Pty Ltd v GIFC Ltd (1987) 4 BPR 9, 708 Investec Bank (Australia) Limited v Glodale Pty Limited (2009) 256 ALR 104 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Leveraged Equities Limited v Goodridge [2011] FCAFC 3 Pendlebury v Colonial Mutual Life Assurance Society Limited (1912) 13 CLR 676 Seeto v Bank of Western Australia [2010] NSWSC 922 Shevill v Builders Licensing Board (1982) 149 CLR 620 Stockl v Rigura Pty Limited [2004] NSWCA 73 Tonto Home Loans Australia Pty Limited v Tavares (2011) 15 BPR 26,699 Category: Principal judgment Parties: Proceedings 2009/296947: Commonwealth Bank of Australia (Plaintiff and First Cross-Defendant) Geoffrey Anthony Shannon (Defendant) 33 Electra Pty Ltd (First Cross-Claimant) C2C Investments Pty Ltd (Second Cross-Claimant) Jim Williams (Second Cross-Defendant) Glen Triggs (Third Cross-Defendant) Neil Singleton and Stephen Parbery (in their former capacities as receivers of 33 Electra Pty Ltd) (Fourth Cross-Defendant)