Carnemolla v Adelaide Bank Limited - [2012] NSWCA 278

Court of Appeal

New South Wales

Case Title: Carnemolla v Adelaide Bank Limited

Medium Neutral Citation: [2012] NSWCA 278

Hearing Date(s): 29 August 2012

Decision Date: 29 August 2012

Before: Allsop P at [1]

Decision:
1.Order the Adelaide Bank Ltd on or before 12 September 2012 to produce to the Registrar of the Court of Appeal two copies of a folder with copies of documents answering the description of the documents required in the schedule attached to the notice of the motion of the Carnemollas filed on 15 May 2012. The folder is to be accompanied by an affidavit by a solicitor certifying that the copies are of originals or if the originals are unavailable the copy in the bank's possession, identifying any documents not held and identifying which documents were produced at any earlier hearing and identifying that hearing.

2.Order the Bank on or before 12 September 2012 to serve one copy of the folder upon the Carnemollas.

3.Order the Carnemollas on or before 3 October 2012 to file and serve any further affidavit, submissions or document identifying or substantiating their appeal or the grounds thereof.

4.Direct the Registrar of the Court of Appeal after 3 October 2012 to approach the Bar Association to seek the assistance of counsel to act as an amicus curiae at the hearing referred to in the next order.

5.Direct the Registrar of the Court of Appeal to list the matter if possible in the November list but otherwise at the earliest opportunity at a date suitable to Mr Sirtes and to counsel acting as amicus curiae.

6.Reserve the question of costs.

7.Stand over the notice of motion of Adelaide Bank Ltd dated and filed 10 April 2012 to the hearing.

8.Leave to the Registrar the question of any further directions for the preparation of the appeal. He is, however, directed to take an approach which will limit the production of any further documents to a minimum. That direction is not to bind his appropriate discretion. It is a reflection of the Court's anxiety not to have any more documents prepared than are absolutely necessary.

9.Stand the matter over to 5 November 2012 at 9.30 am for directions. The Court authorises the Registrar to vacate the date when he makes final directions for the hearing of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Category: Principal judgment

Parties: Sebastian Carnemolla (First Applicant)
Lucia Carnemolla (Second Applicant)
Adelaide Bank Limited (First Respondent)
Bendigo Bank (a Division of Adelaide Bank Ltd) (Second Respondent)

Representation

- Counsel: Counsel:
In person (Applicants)
Mr G Sirtes SC (Respondents)

- Solicitors: Solicitors:
In person (Applicants)
MacGillivrays Solicitors (Respondents)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 278
Decision Date: 29 August 2012

CaseChat Overview and Summary

This matter concerned an appeal by the Carnemollas against Adelaide Bank Limited. The specific nature of the dispute and the grounds of appeal were not detailed in the provided text, which focused on procedural directions. The decision was made by Allsop P in the Court of Appeal.

The primary legal issues before the court related to the procedural steps required for the preparation and listing of the appeal. This included the production of documents by the bank, the filing of further materials by the Carnemollas, and the appointment of an amicus curiae to assist the court. The court also considered the efficient management of the appeal process, aiming to limit the production of unnecessary documents.

The court issued a series of orders to manage the progression of the appeal. These orders mandated the production of specific documents by the bank, required the Carnemollas to file further substantiating material, and directed the Registrar to seek assistance from counsel to act as an amicus curiae. The matter was to be listed for hearing at the earliest opportunity, with the question of costs reserved. The Registrar was given discretion regarding further directions for the preparation of the appeal, with an emphasis on minimising document production.

Orders

Orders of the court

1.Order the Adelaide Bank Ltd on or before 12 September 2012 to produce to the Registrar of the Court of Appeal two copies of a folder with copies of documents answering the description of the documents required in the schedule attached to the notice of the motion of the Carnemollas filed on 15 May 2012. The folder is to be accompanied by an affidavit by a solicitor certifying that the copies are of originals or if the originals are unavailable the copy in the bank's possession, identifying any documents not held and identifying which documents were produced at any earlier hearing and identifying that hearing.

2.Order the Bank on or before 12 September 2012 to serve one copy of the folder upon the Carnemollas.

3.Order the Carnemollas on or before 3 October 2012 to file and serve any further affidavit, submissions or document identifying or substantiating their appeal or the grounds thereof.

4.Direct the Registrar of the Court of Appeal after 3 October 2012 to approach the Bar Association to seek the assistance of counsel to act as an amicus curiae at the hearing referred to in the next order.

5.Direct the Registrar of the Court of Appeal to list the matter if possible in the November list but otherwise at the earliest opportunity at a date suitable to Mr Sirtes and to counsel acting as amicus curiae.

6.Reserve the question of costs.

7.Stand over the notice of motion of Adelaide Bank Ltd dated and filed 10 April 2012 to the hearing.

8.Leave to the Registrar the question of any further directions for the preparation of the appeal. He is, however, directed to take an approach which will limit the production of any further documents to a minimum. That direction is not to bind his appropriate discretion. It is a reflection of the Court's anxiety not to have any more documents prepared than are absolutely necessary.

9.Stand the matter over to 5 November 2012 at 9.30 am for directions. The Court authorises the Registrar to vacate the date when he makes final directions for the hearing of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Carnemolla v Adelaide Bank Limited
Medium Neutral Citation:	[2012] NSWCA 278
Hearing Date(s):	29 August 2012
Decision Date:	29 August 2012
Before:	Allsop P at [1]
Decision:	1.Order the Adelaide Bank Ltd on or before 12 September 2012 to produce to the Registrar of the Court of Appeal two copies of a folder with copies of documents answering the description of the documents required in the schedule attached to the notice of the motion of the Carnemollas filed on 15 May 2012. The folder is to be accompanied by an affidavit by a solicitor certifying that the copies are of originals or if the originals are unavailable the copy in the bank's possession, identifying any documents not held and identifying which documents were produced at any earlier hearing and identifying that hearing. 2.Order the Bank on or before 12 September 2012 to serve one copy of the folder upon the Carnemollas. 3.Order the Carnemollas on or before 3 October 2012 to file and serve any further affidavit, submissions or document identifying or substantiating their appeal or the grounds thereof. 4.Direct the Registrar of the Court of Appeal after 3 October 2012 to approach the Bar Association to seek the assistance of counsel to act as an amicus curiae at the hearing referred to in the next order. 5.Direct the Registrar of the Court of Appeal to list the matter if possible in the November list but otherwise at the earliest opportunity at a date suitable to Mr Sirtes and to counsel acting as amicus curiae. 6.Reserve the question of costs. 7.Stand over the notice of motion of Adelaide Bank Ltd dated and filed 10 April 2012 to the hearing. 8.Leave to the Registrar the question of any further directions for the preparation of the appeal. He is, however, directed to take an approach which will limit the production of any further documents to a minimum. That direction is not to bind his appropriate discretion. It is a reflection of the Court's anxiety not to have any more documents prepared than are absolutely necessary. 9.Stand the matter over to 5 November 2012 at 9.30 am for directions. The Court authorises the Registrar to vacate the date when he makes final directions for the hearing of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Category:	Principal judgment
Parties:	Sebastian Carnemolla (First Applicant) Lucia Carnemolla (Second Applicant) Adelaide Bank Limited (First Respondent) Bendigo Bank (a Division of Adelaide Bank Ltd) (Second Respondent)
Representation
- Counsel:	Counsel: In person (Applicants) Mr G Sirtes SC (Respondents)
- Solicitors:	Solicitors: In person (Applicants) MacGillivrays Solicitors (Respondents)