Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109

Supreme Court New South Wales

Medium Neutral Citation: Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109 Hearing dates: 10 August 2016 Date of orders: 10 August 2016 Decision date: 15 August 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under Rule 13.4 Uniform Civil Procedure Rules 2005 the proceedings are dismissed generally. (2) The plaintiffs are to pay the defendants' costs. Catchwords: CIVIL PRACTICE AND PROCEDURE– summary dismissal proceedings– alleged breach of contract– where plaintiffs have no prospects of success Legislation Cited: Bills of Exchange Act 1909 (Cth), ss 89, 93 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 112; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Legione v Hateley [1983] HCA 11; 152 CLR 406; O'Brien v Bank of Western Australia Limited [2013] NSWCA 71; 16 BPR 31; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Category: Procedural and other rulings Parties: Daniel James Maksacheff and Agnieszka Iwona Maksacheff (Plaintiffs) Commonwealth Bank of Australia & Anor (First to Fifth Defendants) Representation: Counsel: J Hynes (First to Fifth Defendants) M Andrews (Amicus)

Solicitors: Gadens Lawyers (First to Fifth Defendants) File Number(s): 2016/00115260

Judgment 1. The plaintiffs sue the defendants for what is said to be liquidated damages in the sum of $2.8 million, together with interest. The defendants have applied for the proceedings to be summarily dismissed under r 13.4 Uniform Civil Procedure Rules 2005. 2. The plaintiffs were customers of the defendant Bank, who borrowed money from it secured by a mortgage over a property in the Orange region on the western slopes of New South Wales. As the plaintiffs now acknowledge, they defaulted on that loan. The Bank obtained judgment for possession and in debt by default in matter no. 2015/00158687 in this Court. 3. The present proceedings relate to the plaintiffs' claim that the judgment debt was satisfied and discharged by accord and satisfaction on 30 November 2015. The amount claimed is liquidated damages specified in the contract the plaintiffs say was made between them on the one hand, and the defendants on the other. 4. There are in all five defendants to the proceedings being the Bank, four of its officers, and its solicitor acting in the former proceedings. 5. In support of their applications the defendants read the affidavit of Richard Lewin, a solicitor with carriage of the matter, sworn on 3 June 2016. The documents exhibited to him at the time of swearing his affidavit were admitted separately into evidence, but marked consistently with the affidavit as Exhibit RL-1. To resist the application the plaintiffs read the affidavit of the first plaintiff sworn on 30 June 2016 together with attachments, and the original contracts and promissory note appended to it dated 27 November 2015 (Exhibit 2).