Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as BankWest [2017] NSWSC 1052

Supreme Court New South Wales

Medium Neutral Citation: Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as BankWest [2017] NSWSC 1052 Hearing dates: 17, 18, 19, 24, 25, 26 July 2017 Decision date: 11 August 2017 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Plaintiffs' claim dismissed. Judgment in favour of defendant for a money sum and orders for possession of real property. Catchwords: FINANCIAL SERVICES - Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1), 12GF(1) - BANKER AND CUSTOMER - CONTRACT - breach of contract - unconscionable conduct - claim by plaintiffs for loss and damage said to have been caused by the defendant bank repudiating a provision for the release from its security of certain real property - claim that the bank's conduct was unconscionable - HELD: bank repudiated provision - did not engage in unconscionable conduct - LOSS AND DAMAGE - plaintiffs did not establish that they suffered any loss or damage by the conduct complained of - GUARANTEE - third cross defendant claims an oral agreement that the bank would release him of his guarantee of payment of an amount less than the debt owed - HELD: oral agreement not established - HELD: no consideration given for alleged oral agreement - HELD: bank entitled to judgment in money sum against each cross-defendant and to orders for possession of real properties held as security. Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Cases Cited: Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as Bank West [2017] NSWSC 1020 Paciocco v Australia and New Zealand Banking Group (2016) 258 CLR 525 Chappel v Hart (1998) 195 CLR 232 Rosenberg v Percival (2001) 205 CLR 434 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Briginshaw v Briginshaw (1938) 60 CLR 336 Helton v Allen (1940) 63 CLR 691 Rejfek v McElroy (1965) 112 CLR 517 Watson v Foxman (1995) 49 NSWLR 315 Foakes v Beer (1884) 9 App Cas 605 Amos v Citibank Limited [1996] QCA 129 Category: Principal judgment Parties: Carmelo Adriano Mastronardo - First Plaintiff/First Cross-Defendant Claudia Alejandra Mastronardo - Second Plaintiff/Second Cross-Defendant Commonwealth Bank of Australia Limited ACN 123 123 124 trading as Bankwest - Defendant/Cross-Claimant Antonio Mastronardo - Third Cross-Defendant Via Sanantonio Pty Limited - Fourth Cross-Defendant AM Property Investments Pty Ltd - Fifth Cross-Defendant Representation: Counsel: Mr R.A. Angyal SC with Ms M. Bridgett - First Plaintiff / First Cross-Defendant, Second Plaintiff / Second Cross-Defendant, Fourth Cross-Defendant and Fifth Cross-Defendant (17, 18, 19 July) Mr T. Hall (Solicitor) - First Plaintiff / First Cross-Defendant, Second Plaintiff / Second Cross-Defendant, Fourth Cross-Defendant and Fifth Cross-Defendant (24, 25, 26 July) Mr M. Dempsey SC with Mr M. Rose - Defendant / Cross-Claimant Ms M. Dolenec - Third Cross-Defendant