International Skin Care Suppliers Pty Ltd v Commonwealth Bank of Australia; Commonwealth Bank of Australia v Scott William Michaelson; Commonwealth Bank of Australia v Stephen John Ruskin; Commonwealth Bank of Australia v Scott William Michaelson [2013] NSWSC 1768

Supreme Court New South Wales

Medium Neutral Citation: International Skin Care Suppliers Pty Ltd v Commonwealth Bank of Australia; Commonwealth Bank of Australia v Scott William Michaelson; Commonwealth Bank of Australia v Stephen John Ruskin; Commonwealth Bank of Australia v Scott William Michaelson [2013] NSWSC 1768 Hearing dates: 26, 27, 28, 29, 30 August, 2, 3, 4, 9, 10, 11, 12, 16, 17, 18, 30 September and 1, 2, 3, 8, 9, 10 October 2013 Decision date: 29 November 2013 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Plaintiffs' claims dismissed. Bank entitled to judgment against each of the cross-defendants. Bank entitled to judgment against each of the female guarantors. Bank entitled to orders for possession of Seaforth and Allambie Heights. Catchwords: FINANCIAL SERVICES - ss 12CA and 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) - whether bank misleadingly or deceptively represented that it would not regard appointment of voluntary administrators as an Event of Default under a loan facility - whether bank unconscionably procured and relies on releases and bars in a Deed of Forbearance - whether loss suffered by appointment of receivers to properties which were security under the facility and guarantees - whether quantum is established - CONTRACTS - s 7(1) of the Contracts Review Act 1980 (NSW) - whether personal guarantees were unjust in the circumstances relating to them at the time they were made - whether it is unconscionable under the general law to enforce them Legislation Cited: Australian Securities and Investments Commission Act 2001 Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) Category: Principal judgment Parties: Proceedings 2010/326659 International Skin Care Suppliers Pty Ltd ACN 134 156 004 - First Plaintiff Mascot Property Group Pty Ltd - Second Plaintiff Eminence Pty Ltd - Third Plaintiff Sunlovers Partners Pty Ltd - Fourth Plaintiff Tanning Systems Australia Pty Ltd - Fifth Plaintiff Barun Concepts Pty Ltd as Trustee of The Macintosh Unit Trust - Sixth Plaintiff CPL Australasia Pty Limited (subject to Deed of Company Arrangement) - Seventh Plaintiff Commonwealth Bank of Australia - Defendant Proceedings 2011/139468 Commonwealth Bank of Australia - Plaintiff/ Cross-Defendant Scott William Michaelson - First Defendant/First Cross-Claimant Suzanna Michaelson - Second Defendant/Second Cross-Claimant Proceedings 2011/260157 Commonwealth Bank of Australia - Plaintiff/ Cross-Defendant Stephen John Ruskin - First Defendant/ First Cross-Claimant Simone Nanette Ruskin - Second Defendant/Second Cross-Claimant