Charan v CBA [2015] NSWCA 364

The bank obtained default judgment for possession and sold the home. The husband commenced proceedings against the bank and the trustees in bankruptcy of both his son and wife who owned the home with him as tenants in common in unequal shares. The husband sought leave to re-plead his claim for compensation against the bank and the trustees in bankruptcy but was denied. However the court noted that a new claim could be made against the bank in respect of its conduct as mortgagee in possession or in respect of it’s power of sale. The husband did this and failed and sought leave to appeal. The court noted that the husband’s claim required him to prove that he was the beneficial owner of the home, with his wife and son merely holding legal title. The court noted that the husband had failed to asset any equitable interest in the land, let alone an equitable interest that would prevent the home falling into the bankrupt estate of his wife and son. The court also noted that other issues had been previously ruled upon in earlier proceedings.

The appeal was dismissed.

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