Ozden and Ozden v Commonwealth Bank of Australia

[2014] VSCA 127

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Damages
2. › Assessment of damages
3. › Loss of chance
4. › Loss of commercial opportunity
5. › Whether trial judge erred in assessment
6. › Standard of appellate review of damages assessment
7. › Whether judge acted on wrong principle or misapprehended facts
1. Equity
2. › Equitable set-off
3. › Cross-claim for unliquidated damages
4. › Whether cross-claim impeaches title to legal demand
5. › Whether claims sufficiently closely related
6. › Requirement that equity go to root of plaintiff's claim
1. Consumer Credit
2. › National Credit Code
3. › Enforcement proceedings
4. › Non-compliant notice of default
5. › Leave to commence proceedings nunc pro tunc
6. › Discretion under s 88(5)(c)
7. › Whether discretion properly exercised
1. Contract
2. › Implied duties
3. › Duty to cooperate
4. › Duty to act reasonably and in good faith
5. › Mortgagee and mortgagor
6. › Whether breach of duty established

Quick Take

A mortgagor's cross-claim for unliquidated damages arising from a mortgagee's wrongful retention of a certificate of title does not impeach the mortgagee's claim for repayment of loans so as to constitute an equitable set-off, where the claims are independent and not sufficiently closely related. Damages for wrongful retention of a certificate of title are properly assessed on a loss of chance basis where no contract of sale was on foot. The surrender of mortgaged property is a unilateral act that does not require the mortgagee's cooperation.