Capital Securities XV Pty Ltd v Calleja (No 2) [2018] NSWSC 1498

Supreme Court New South Wales

Medium Neutral Citation: Capital Securities XV Pty Ltd v Calleja (No 2) [2018] NSWSC 1498 Hearing dates: 31 July 2018 Date of orders: 11 October 2018 Decision date: 11 October 2018 Jurisdiction: Common Law Before: Fagan J Decision: (1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules the Amended Statement of Claim is dismissed as against the second defendant.

(2) The plaintiff is to pay the second defendant's costs of the proceedings. Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – application for statement of claim to be struck out as against second defendant – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – second defendant a bank to which first defendant was indebted – statement of claim dismissed as against second defendant

RESTITUTION – nature of restitutionary liability – unjust enrichment – enrichment – payment by plaintiff to credit of first defendant's loan account with bank – alleged mistake of plaintiff as to whether payment authorised as part of a loan advance – whether funds recoverable from bank by way of restitution – whether bank enriched by reduction of loan account of its customer (first defendant) Legislation Cited: Contracts Review Act 1980 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 Category: Procedural and other rulings Parties: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) (plaintiff/respondent) Elizabeth Ann Calleja (first defendant) Commonwealth Bank of Australia (second defendant/applicant) Representation: Counsel: Mr M W Young SC (plaintiff/respondent) Ms N Obrart (first defendant/applicant) Mr D Krochmalik (second defendant/applicant)