Ekes v Commonwealth Bank of Australia [2014] NSWCA 336

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Hearing dates: 2 June 2014 Decision date: 30 September 2014 Before: Bathurst CJ at [1]; Beazley P at [176]; Emmett JA at [177] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Set aside orders 1-9 of the orders made by the primary judge on 8 March 2013. (4) Grant the appellant leave to file an amended defence in the form of the draft defence contained at pp 65-81 of the Red Book filed in the proceedings and a cross-claim filed in the form of the draft cross-claim contained at pp 84-107 of the Red Book filed in the proceedings. (5) Remit the matter to the Common Law Division for hearing. (6) Order the respondent pay the appellant's costs of the appeal. (7) Costs of the motion at first instance, the subject of the appeal, otherwise be costs in the cause. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - summary disposal - application to strike out defence and refuse leave to file amended defence and cross-claim - whether pleadings so obviously untenable could not possibly succeed - whether arguable that issue and Anshun estoppel and abuse of process principles do not arise