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[2025] NSWSC 848
General information, not legal advice.
Supreme Court of NSW
2025-07-30
Peden J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: NSW Construction Corporation Pty Ltd v Commonwealth Bank of Australia [2025] NSWSC 848
Hearing dates: On the papers
Date of orders: 24 July 2025
Decision date: 30 July 2025
Jurisdiction: Equity - Commercial List
Before: Peden J
Decision: See [20]
Catchwords: CIVIL PROCEDURE – Commercial List, Technology and Construction List – Transfer to – Principles governing exercise of discretion – Where plaintiffs initially entered proceedings in General List of Common Law Division alleging various breaches of contract – Where proceedings transferred by consent following amendment of pleadings to General List of Equity Division – Where parties consent to proceedings remaining in General List – Where plaintiffs’ solicitors unilaterally request reasons for dismissing application for transfer to Commercial List notwithstanding indication of consent – Application for transfer dismissed – No issue of principle
PRACTICE AND PROCEDURE – Email communications with Judge’s Chambers – Unilateral email communications – Where Chambers notified that correspondence sent without consent of defendant – Where Chambers further notified that defendant’s solicitors copied in to correspondence for transparency – No issue of principle
Legislation Cited: Corporations Act 2001 (Cth) ss 9, 912A
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 22.5
Practice Note SC CL 1 cl 13
Practice Note SC Eq 3
Uniform Civil Procedure Rules 2005 (NSW) rr 45.2, 45.6, pt 2, sch 8
Cases Cited: Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18
Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170
Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297
Coastline Constructions (Aust) Pty Ltd v Kakavas [2008] NSWSC 388
Collins v Mead (Supreme Court of New South Wales, Rogers J, 7 March 1990, unreported)
Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1986, unreported)
Grifols (HK) Ltd v DHL Supply Chain (Australia) Pty Ltd [2020] NSWSC 1504
Malleys Ltd v Horton Investments Ltd [1961] NSWR 1064
Maysan Holdings Pty Ltd v Hasan [2025] NSWSC 788
Salubre v National Australia Bank Ltd [2025] NSWSC 807
Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [2013] NSWSC 1971
Category: Procedural rulings
Parties: NSW Construction Corporation Pty Ltd (First Plaintiff)
Eamad John Saba (Second Plaintiff)
Commonwealth Bank of Australia (Defendant)
Representation: Solicitors:
CH-Earnest (Plaintiffs)
Gadens (Defendant)
File Number(s): 2025/00173899
Publication restriction: Nil
On 22 July 2025, the parties provided to Chambers consent orders seeking to transfer these proceedings from the General List of the Equity Division to the Division’s Commercial List, and effectively disposing of the plaintiffs’ notice of motion seeking such transfer. Other case management orders were also sought.
In the underlying proceedings, the plaintiffs, each of whom formerly held accounts with the defendant, the Commonwealth Bank of Australia (CBA), broadly seek:
damages for breach of contract, in the sum of $1,030,192.89, said to be consequent upon CBA’s wrongful closure of their accounts and the first plaintiff’s loan facility, and consequential reputational damage to their credit ratings;
declaratory relief that the notices of closure issued by CBA were “invalid” and that the ensuing closures were “invalid and unlawful”;
mandatory injunctive relief compelling CBA to notify “credit reporting bodies” of its wrongdoing and otherwise to take steps to “remedy the credit information of the plaintiffs by a method to be determined and/or consequential orders”; and
interest and costs.
The plaintiffs commenced these proceedings in the General List of the Common Law Division, which were case managed by the Common Law Registrar in accordance with cl 13 of Practice Note SC CL 1.
By consent, on 11 July 2025, the Common Law Registrar transferred the proceedings to the General List of the Equity Division. The impetus for that transfer arose from certain amendments made to the plaintiffs’ Statement of Claim on 3 June 2025, which inserted allegations that CBA, in its capacity as a “financial services licensee” within the meaning of s 9 of the Corporations Act 2001 (Cth) (the Corporations Act), had contravened its obligation under s 912A(1)(a) thereof to “do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly”.
In correspondence sent by CBA’s legal representatives to the plaintiffs’ legal representatives on 16 June 2025, it was suggested that the effect of the plaintiffs’ amended pleadings was such that the matter “ought to be transferred to the Equity Division and managed in the Commercial List”, in circumstances where r 45.6(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) contemplates that “proceedings arising out of commercial transactions” may be entered in that list, and pt 2 of sch 8 to the UCPR provides that proceedings involving the Corporations Act are assigned to the Equity Division.
On 23 July 2025, my Tipstaff informed the parties that I considered the proceedings ought to be managed in the General List of the Equity Division, unless the parties wished to be heard. On 24 July 2025, the plaintiffs’ legal representatives indicated that their clients “consent[ed] to and [did] not seek to oppose the Proceedings being transferred to the General List of the Equity Division”.
We are instructed to seek clarification as to the reasons for which Her Honour proposed to transfer the proceedings to the General List of the Equity Division and subsequently dismissed the Plaintiff’s Notice of Motion filed on 16 July 2025, particularly in circumstances where the parties had proposed consent orders on 22 July 2025 in support of the Motion …
This correspondence is sent without the consent of the Defendant. Their solicitors are, however, copied for transparency.
(underlining added)
Two features of this correspondence warrant attention. The first is the sending of a communication “without the consent” of the other party. Whether the communication sent by Mr Chaina to Chambers constitutes a breach of r 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) need not be decided here. Nonetheless, as a matter of prudence, it was undesirable.
In Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [2013] NSWSC 1971 at [19]-[20], Kunc J set out what ought to be obvious to all practitioners:
Email communications with a judge’s chambers may assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings.
No communication to a judge’s chambers copied to all parties should override “the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties”.
Sending an email with a disclosure of the other parties' lack of knowledge or lack of consent does not cure any impropriety.
Kunc J concluded at [21]-[22]:
There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:
(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);
(2) ex parte matters;
(3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and
(4) exceptional circumstances.
There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paras … (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.
The second feature that merits comment is the nature of the plaintiffs’ request itself. One obvious reason why the plaintiffs’ application for a transfer of the proceedings to the Commercial List was dismissed was the indication of consent given to that course by their own legal representatives, as well as CBA’s legal representatives. In the ordinary course, if the parties had wished to agitate transfer to this List, they ought to have done so at the hearing of the motion listed on 25 July 2025.
Nonetheless, these reasons elaborate why I dismissed the plaintiffs’ notice of motion seeking the transfer of these proceedings from the Division’s General List to its Commercial List.
I have recently outlined the principles governing the exercise of the Court’s general discretion, conferred by r 45.2 of the UCPR, to order the transfer of proceedings from the General List to the Commercial List: see Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787 at [3]-[4]; and Salubre v National Australia Bank Ltd [2025] NSWSC 807 at [5]-[8]. Those principles are equally applicable to applications seeking the removal of proceedings from the Commercial List: see Maysan Holdings Pty Ltd v Hasan [2025] NSWSC 788 at [2]-[3].
Those principles may be summarised thus:
Ordinarily, the discretion conferred by r 45.2 of the UCPR is to be exercised by reference to the kinds of proceedings enumerated in r 45.6(1)(a)-(b) thereof, as well as the List’s purpose of providing specialist and expedient adjudication of commercial disputes: see, eg, Collins v Mead (Supreme Court of New South Wales, Rogers J, 7 March 1990, unreported) at 3-4;
Even where proceedings answer the description set out in para (a) or (b) of r 45.6(1) of the UCPR, the List Judge retains a discretion nonetheless to refuse to enter proceedings in the Commercial List: see, eg, Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 301 (Rogers CJ Comm D);
It is for the applicant on such a motion to satisfy the Court that there is good reason for transfer, in light of the disruption that that course might effect on the “orderly conduct of the business of the court”: see, eg, Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1986, unreported) at 5; Grifols (HK) Ltd v DHL Supply Chain (Australia) Pty Ltd [2020] NSWSC 1504 at [77] (Cavanagh J);
It is insufficient for the applicant on such a motion to rely simply on the fact that the case the subject of the application is one that is “customarily dealt with in the Commercial List”, particularly where it has been properly commenced in one division or list and does not call for the specialist expertise of the List Judge: Grifols (HK) Ltd v DHL Supply Chain (Australia) Pty Ltd at [76]; Coastline Constructions (Aust) Pty Ltd v Kakavas [2008] NSWSC 388 at [18] (Hislop J).
To these, it might be added that the mere fact that the parties have agreed that their proceedings should be transferred to the List is immaterial to the exercise of the discretion. Ordinarily, consent orders that are considered appropriate will be made: see, eg, Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [21] (French J). However, it would be inconsistent with the purpose of the List to enter matters into it, where they have only a tangential or unimportant connection to trade or commerce, merely because parties wish it: cf at 306; at [5].
It is not apparent to me that these proceedings involve any “issue that has importance in trade or commerce” for the purposes of r 45.6(1)(b) of the UCPR. I accept that s 912A(1)(a) of the Corporations Act is designed to “require social and commercial norms or standards to be adhered to”: Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170 at 210 (Allsop CJ). But that statutory policy does not elevate the plaintiffs’ case to one involving the requisite degree of importance to justify transfer to the Commercial List. The balance of the plaintiffs’ claims appears to concern an unremarkable breach of contract dispute.
I accept that, on one view, the account and loan facility closures about which the plaintiffs complain evince a dispute arising out a commercial transaction for the purposes of r 45.6(1)(a) of the UCPR: cf Malleys Ltd v Horton Investments Ltd [1961] NSWR 1064 at 1067 (Walsh J). However, there is nothing in the plaintiffs’ case that calls for the specialist expertise of the Commercial List. The allegations levied by the plaintiffs against CBA are ones commonly determined by judges in the Division’s General List. Thus, even accepting that the closures are capable of answering the description of “commercial transactions”, I would have exercised my discretion to refuse transfer to the Commercial List.
Accordingly, there is no reason why the proceedings cannot be satisfactorily progressed through the Division’s General List.
For these reasons, I made the following orders on 24 July 2025:
The plaintiffs’ notice of motion, filed 15 July 2025, is dismissed.
The matter is listed for directions before the Registrar in Equity on 14 August 2025.
**********
NSW Construction Corporation Pty Ltd
Commonwealth Bank of Australia [2025] NSWSC 848
(2019) 272 FCR 170
(1989) 17 NSWLR 297
Orders were thereafter entered, dismissing the plaintiffs’ application for a transfer of the proceedings to the Commercial List, in circumstances where, as outlined above at [4], the proceedings had already been transferred to the Division’s General List.
Notwithstanding the plaintiffs’ consent to the proposed orders, on 28 July 2025, my Chambers received unilateral correspondence from Mr Jean-Pierre Chaina, the “Director and Principal Solicitor” of the firm retained by the plaintiffs, which read as follows: