Joint Statement by Commonwealth Bank and Rory O'Brien

On 2 May 2014, Commonwealth Bank of Australia (CBA) and Rory O’Brien and his companies agreed to resolve the longstanding dispute between them concerning Mr O’Brien’s Whisper Bay development at Airlie Beach in Queensland.
The terms of the settlement included:

• the finalisation of all Court proceedings between CBA and Mr O’Brien and his companies (subject to Court approval of consent orders between the parties);
• an acknowledgement by Mr O’Brien that he would have lacked the means to satisfy the full judgment or costs order against him were CBA to have succeeded in the proceedings; and
• the payment by CBA to Mr O’Brien of an amount representing a small proportion of CBA’s estimated legal costs of running the Court proceedings to completion.

Mr O’Brien’s claims included allegations that CBA and/or Bankwest had inappropriately placed his company’s facilities into default to derive a benefit under the agreement by which CBA acquired Bankwest in late 2008. After having had the chance to review the legal proceedings, including the evidence CBA intended to lead in the trial, Mr O’Brien agreed to withdraw the so-called “improper purpose” or “clawback” allegations. Mr O’Brien:

• accepted that, having received and reviewed the evidence, the improper purpose or clawback allegations were without foundation.
• accepted that the improper purpose or clawback allegations were very unlikely to succeed; and
• accepted there was no evidence that CBA’s or BankWest’s officers had actually acted in the way alleged by Mr O’Brien in the improper purpose or clawback allegations.

All other terms of the settlement are confidential.