Anthony Thomas Rigg & v Commonwealth Bank of Australia & Ors

[2000] NSWCA 191

NEW SOUTH WALES COURT OF APPEAL

CITATION:     ANTHONY THOMAS RIGG & ANOR v COMMONWEALTH BANK OF AUSTRALIA & ORS [2000]  NSWCA 191

FILE NUMBER(S):
40104/00

HEARING DATE(S):           18 July 2000

JUDGMENT DATE:            18/07/2000

PARTIES:
ANTHONY THOMAS RIGG & ANOR v COMMONWEALTH BANK OF AUSTRALIA & ORS

JUDGMENT OF:      Mason P Beazley JA Heydon JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        CL 12836/93

LOWER COURT JUDICIAL OFFICER:     Brownie AJ

COUNSEL:
Appellants: D C Fitzgibbon
Respondents: A G Bell

SOLICITORS:
Appellants: None on record
Respondents: L E Taylor

CATCHWORDS:
Mortgage - default - whether time of essence - waiver - ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40104/00

MASON P
BEAZLEY JA
HEYDON JA

Tuesday 18 July 2000

Anthony Thomas RIGG & Anor v COMMONWEALTH
BANK OF AUSTRALIA & 2 Ors

JUDGMENT

1. MASON P:   In July 1993 the respondent commenced proceedings in the Common Law Division, seeking possession of premises at Riverview Road Nowra and a money judgment.  The respondent was claiming under a mortgage over the property granted by the appellants.  The mortgage contained an all moneys clause, the moneys being payable on demand (Blue Book 97 and 100).

2. Before the proceedings were commenced, the respondents served notices under s 57 of the Real Property Act, demanding payment of the balance claimed due (Blue 287).

3. In a reserved judgment, given some little time after lengthy proceedings, Brownie AJ gave judgment for the respondent for possession of the land.  He granted leave to issue a writ of possession, directing that it lie in the Registry for twenty eight days, and he gave judgment for the respondent against the appellants for $1,040,987.79.  His Honour dismissed the cross-claims propounded by the appellants and ordered the appellants to pay the respondent's costs of the action and the cross-claims.

4. At trial, the appellants advanced a number of grounds seeking to set up reasons why the moneys claimed were not due in the sum claimed.  It was the common starting point for all parties that there were Terms of Settlement compromising earlier litigation, those Terms being dated 23 November 1989.  Clause 1 of the terms provided:

   The Riggs and the company will jointly and severally be liable to pay to CBA a principal sum of $980,000.  Of this sum, an amount of $380,000 is to be paid on 16 January 1990 (the settlement date) and the balance of $600,000 is to be paid on or before 16 October 1990.  Provided the whole of the principal sum is paid to CBA when due, no interest will be payable but if the amount due to be paid on the settlement date is not paid on that date, the whole amount of the principal sum will then immediately fall due and will bear interest at the rate payable on Supreme Court judgments from time to time.  If the amount of the principal sum due to be paid on the settlement date is paid, the balance of the principal sum is not paid when due, that balance will bear interest at the rate payable on Supreme Court judgments from time to time.

5. The sum of $380,000 was not paid by the agreed settlement date, 16 January 1990, or at all.  According to clause 1 of the Terms of Settlement, the balance thereupon fell due.  Correspondence from the respondent dated 16 January 1990 shows that the respondent did not waive its rights and the appellants accepted this in submissions today.

6. The appellants submitted that time was not of the essence, that there was no election to terminate the contract established by the Terms of Settlement and that there were acts of waiver of rights under the mortgage between 16 January 1990 and 11 May 1993.  This repeated the principal arguments advanced in defence of the bank's claims before the trial judge.

7. We have the benefit of a careful judgment of Brownie AJ and in my view it is sufficient to say that I am in entire agreement with the reasons given in the judgment for rejecting those arguments.  I am content to adopt them.

8. Very little seems to have happened between mid 1990 and mid 1993.  It had become apparent that the respondent was seeking to recover the totality of the $980,000 plus interest less the proceeds of sale of the South Nowra property that was the subject of another mortgage.  The appellants had hoped to refinance the South Nowra property in early 1990 for the lesser sum of the $380,000 due by the settlement date under clause 1 of the Terms of Settlement.  They were not able to do so by the settlement date.  It is apparent that in early 1990 they were hoping nevertheless to do so and somehow put the terms of Settlement back on track.  This did not occur and there was, for the reasons given by Brownie AJ, no default on the respondent's part, nor any waiver involved in that continuing inability on the appellants’ part.

9. As indicated, the appellants propounded a number of cross-claims in the proceedings below and these were rejected.  Some of the issues in the cross-claims are still pressed, particularly the submission that the respondent was in breach of various duties as mortgagee in relation to the  other property at South Nowra.

10. I am content to adopt the reasons given by the learned trial judge and in particular paragraphs 31 to 36 of his judgment for rejecting that part of the appellants’ claims in this Court.

11. In my view, the appeal should be dismissed with costs.

12. BEAZLEY JA:  I agree.

13. HEYDON JA:  I agree with the President.

14. MASON P:  The appeal is dismissed with costs.

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LAST UPDATED:    22/08/2000