Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 6) [2019] NSWSC 958

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 6) [2019] NSWSC 958 Hearing dates: 27 June 2018 and 19 July 2018 Decision date: 15 August 2019 Jurisdiction: Common Law Before: McCallum J Decision: (1) Pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following questions be determined separately from any other question in the proceedings, and before any trial in the proceedings:

(a) Whether the relief, which the first and/or second defendants would be entitled to claim under section 12GM of the Australian Securities and Investments Commission Act 2001 (Cth) (Act) (or any cognate provision under any other legislation), if it established a contravention of Division 2 of Part 2 of the Act (or its cognates), is limited to:

(i) non-monetary relief against the plaintiff; and/or (ii) the amount of the debt claimed by the plaintiff in these proceedings, as due and owing at the time of judgment, against the first defendant.

(b) Whether the first and/or second defendants are otherwise precluded from seeking or obtaining judgment for a monetary amount against the plaintiff.

(2) In relation to Daleport, that the questions be answered: (a) As to (a)(i), "no"; (b) As to (a)(ii), "yes".

(3) In relation to Mr Walton, that both questions be answered "yes". (4) That the bank have leave to discontinue the proceedings on terms that there be no order as to costs. Catchwords: CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants' impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs Legislation Cited: Australian Security and Investments Commission Act 2001 (Cth), s 12GM Civil Procedure Act 2005 (NSW), ss 21, 22 Trade Practices Act 1974 (Cth), ss 82, 87 Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Cases Cited: AWB Limited v Cole (No 2) [2006] FCA 913; (2006) 233 ALR 453 Bank of Western Australia v Daleport [2010] NSWSC 1207 Bank of Western Australia v Daleport Pty Ltd [2011] NSWSC 819 Bass v Permanent Trustee Co Limited (1999) 198 CLR 334; [1999] HCA 9 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 Chen v Karandonis [2002] NSWCA 412 Daleport Pty Ltd v Bank of Western Australia Ltd [2012] NSWCA 402 Edwards v Adam [2016] NSWSC 1534 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Genworth Financial Mortgage Insurance Pty Ltd v Hodder Rook & Associates Pty Ltd [2017] NSWSC 640 Kelly v Australian Postal Corporation [2015] FCA 1064 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Rozenblit v Vainer [2018] HCA 23 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (plaintiff) Daleport Pty Ltd (in receivership) (first defendant) Alexander Raymond Walton (second defendant) Representation: Counsel: T D Castle (plaintiff) N Obrart (defendants)