The Commonwealth bank refused summary judgement…
Cordovo Developments Pty Ltd sued the Commonwealth Bank trading as the Bank of Western Australia for damages for alleged misleading and deceptive conduct, negligent misstatement and unconscionable conduct. The bank applied to the Supreme Court of Western Australia to have the claim dismissed on the basis that it could not possibly succeed.
The bank made this claim because following the resolution of a complaint to the Financial Ombudsman Services (now the Australian Financial Complaints Authority) Cordovo had signed a release. Cordovo claimed that the release that the bank prepared for them to sign, was much wider than the release they signed with Financial Ombudsman Services (now the Australian Financial Complaints Authority) and covered more than the dispute dealt with by Financial Ombudsman Services (now the Australian Financial Complaints Authority). Cordovo claimed that it had been misled by the bank.
His Honour found that Cordovo should have the chance to present their case and refused the bank’s application for summary judgment.
A contract that is uncertain is void…
If the language of a contractual term is so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any contractual intention then it is void for uncertainty.
The court will strive to adopt a construction which will preserve the validity of a contract. This is particularly the case in commercial arrangements.
The court will assume that he parties intended to achieve a commercial result.
These matters were before the Supreme Court of New South Wales in Abod Pty Ltd v Kingston Finance Pty Ltd. In this case one matter in the contract was left for one of the parties to deal with. Justice Pembroke decided that the determination of the applicable interest rate by the lender, if there was no agreement, was not so uncertain as to make the contract void for uncertainty.