Commonwealth Bank of Australia v Hadfield

[2001] NSWCA 440

Reported Decision: 53 NSWLR 614

New South Wales

Court of Appeal

CITATION:	Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440
FILE NUMBER(S):	CA 40364/01
HEARING DATE(S):	13 November 2001
JUDGMENT DATE:	12 December 2001
PARTIES :	Commonwealth Bank of Australia Denis Ronald Hadfield
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Bryson J

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	1244/00
LOWER COURT JUDICIAL OFFICER :	Balla DCJ

COUNSEL:	Claimant: J S Hilton SC/A Henskens Opponent: S Rares SC/J Lawler/F Assaf
SOLICITORS:	Claimant: Jackson Smith Opponent: L E Taylor
CATCHWORDS:	District Court - Jurisdiction - Equitable Jurisdiction - Claim for Account - Claim for Prohibition - Exercise of Discretion
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) s 69 District Court Act 1973 (NSW) s 134
CASES CITED:	Urban Transport Authority v Nweiser (1991) 28 NSWLR 471 Coroneo v Australian Provincial Assurances Association Limited (1935) 35 SR (NSW)391 Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (1982) NSW ConvR 55-097 Forsyth v Blundell (1973) 129 CLR 477 ANZ Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 Pendlebury v Colonial Mutual Life Assurance Society Limited (1912) 13 CLR 676 R v Bolton, ex parte Beane (1987) 70 ALR 225 Malika Holdings v Stretton (2001) 178 ALR 218 Barns v Queensland National Bank Ltd 91906) 3 CLR 925
DECISION:	Leave to appeal refused

CA 40364/01
DC 1244/00
MASON P
BEAZLEY JA
BRYSON J


Wednesday, 12 December 2001

COMMONWEALTH BANK OF AUSTRALIA v Denis Ronald HADFIELD & Anor

FACTS

The plaintiff/opponent brought proceedings against the Bank claiming damages for wrongful exercise of a power of sale under a Real Property Act mortgage. After addresses had been commenced the plaintiff sought leave to adduce further evidence and to amend his Statement of Claim so as to claim equitable relief including a claim for an account.

The claimant (the Bank) sought an order under s 69 of the Supreme Court Act 1970 (NSW) prohibiting the District Court of New South Wales from further hearing proceedings. The Bank contended that the only remedy available to a mortgagor alleging a wrongful exercise of power of a sale was a proceeding in equity for an account and the District Court did not have such equitable jurisdiction.

The Bank also sought leave to appeal from orders made by the trial judge granting leave to the plaintiff to re-open its case and to amend its pleadings.

HELD per Beazley JA (Mason P and Bryson J agreeing)
(i) A proceeding for an account falls within the jurisdiction conferred on the court by s 134(1)(h) of the District Court Act 1973 (NSW). Accordingly, the application for prohibition was refused.

(ii) There was no error in the trial judge’s exercise of discretion in granting leave to allow the plaintiff to re-open its case.

(iii) There was no error in the trial judge’s discretion in granting leave to the plaintiff to amend the statement of claim to claim equitable relief for an account.

ORDERS
(i) Application for leave to appeal refused;

(ii) Summons otherwise dismissed;

(iii) Claimant to pay the opponent’s costs.


********

CA 40364/01
DC 1244/00
MASON P
BEAZLEY JA
BRYSON J


Wednesday, 12 December 2001

COMMONWEALTH BANK OF AUSTRALIA v Denis Ronald HADFIELD & Anor

JUDGMENT

1 MASON P: I agree with Beazley JA.

2 BEAZLEY JA: The claimant, the Commonwealth Bank of Australia (the Bank) seeks an order in the nature of prohibition under s 69 of the Supreme Court Act 1970 (NSW), prohibiting the District Court of New South Wales from further hearing proceedings number 1244 of 2000 between the first opponent, Mr Hadfield (the plaintiff in those proceedings) and the Bank.

3 The Bank also seeks an order granting leave to appeal against the orders of Balla DCJ given on 11 May 2001, granting leave to the plaintiff to re-open its case and to amend its pleadings.

The District Court Proceedings

4 The plaintiff owned certain land at Wyong Creek in respect of which the Bank had granted a mortgage. At the time of the granting of the mortgage the land was under Old System Title. Subsequently, the land was brought under Qualified Title pursuant to the provisions of the Real Property Act 1900 (NSW). The mortgage was thus brought under the provisions of the Act: see s 28P, s 39 – 39C.

5 The Bank exercised its power of sale. It was accepted that the exercise of that power was an exercise of the statutory power of sale under the Real Property Act.

6 The plaintiff challenged the Bank’s manner of exercise of the power of sale and commenced proceedings in the District Court of New South Wales, (proceedings number 1244 of 2000), claiming that the Bank had sold the property in reckless disregard of his interests and breached its duty to act in good faith and/or duty to take all reasonable care to obtain the best possible price for the property.

7 The plaintiff also alleges in those proceedings that he conducted a worm farm on the property and that he was, in effect, prevented by the Bank from removing the worm farm when the Bank obtained possession of the property and that the Bank failed to take proper care of it. The worm farm was thus lost to the plaintiff and he seeks damages in the proceedings for that loss.

8 The hearing commenced on 26 March 2001 before Balla DCJ. The hearing proceeded over eight days until 6 April. The events which then occurred are the subject of the application for leave to appeal.

9 At the conclusion of the proceedings on 6 April, the plaintiff made an application to serve a further expert report as to the time it would take to register a linen plan at the Land Title Office so as to effect a subdivision of the property. That application arose because of evidence given by one of the Bank’s witnesses in re-examination. The application was opposed by the Bank and the matter was adjourned to 7 May 2001.

10 On 7 May 2001 the plaintiff renewed its application and it was granted. The expert gave evidence. That evidence revealed a further gap in the plaintiff’s case, namely as to the time required to have the Wyong Council endorse the linen plan. The case continued on that day with the plaintiff continuing to call its evidence.

11 On the evening of 7 May 2001, the plaintiff’s counsel had a telephone conference with Mr Levick, real estate agent, who had already given evidence, to ascertain whether he could give evidence as to the time it would take for the Wyong Council to approve a linen plan. Mr Levick prepared a further report and faxed it to counsel. However, the report did not reach counsel before he left chambers for court on 8 May 2001.

12 Counsel proceeded with his case by tendering documents. That was said to be the close of the plaintiff’s case and counsel commenced his address. Counsel made no reference to his consideration of calling further evidence from Mr Levick.

13 Counsel for the Bank then addressed, making detailed reference to the deficiencies in the plaintiff’s case and to certain credit issues affecting the plaintiff. Two of the deficiencies upon which he addressed are relevant to the matters in issue on the appeal. One was the gap in the plaintiff’s case as to how long it would take Wyong Council to endorse a linen plan – the gap proposed to be filled by Mr Levick’s evidence. The other was the omission to have the plaintiff give evidence of the underlying facts in support of his expert’s report relating to the worm farm.

14 Counsel for the Bank also addressed on the jurisdictional issue now subject of the prohibition application, namely that the plaintiff’s claim was properly for the taking of accounts and there was no jurisdiction in the District Court to hear such an action. Accordingly, it was submitted that the claim for damages relating to the exercise of the claimant’s power of sale should be rejected.

15 The Bank’s counsel did not complete his address on 8 May 2001. The matter was thus adjourned until 9 May 2001. At the commencement of the hearing on that day, the plaintiff’s counsel made three applications:

(i) an application to re-open the plaintiff’s case and lead further evidence from the plaintiff to prove the factual sub-stratum upon which the expert’s report was based;

(ii) an application to re-open the plaintiff’s case to lead further evidence from Mr Levick;

(iii) an application to further amend the statement of claim so as to include claims for equitable damages, equitable compensation and an account.

16 The trial judge granted each application over the opposition of the Bank.

17 The Bank seeks leave to appeal from her Honour’s orders. I propose to deal first with the applications for leave to appeal from the two orders permitting the re-opening of the evidence. The application to amend the statement of claim is linked with the jurisdictional issue and is appropriately dealt with in conjunction with that matter.

18 The Bank submitted that in exercising her discretion in making these decisions Balla DCJ erred in two respects so that her exercise of discretion miscarried. The first error was that her Honour failed to appreciate that the Bank would have taken a different course on the morning of 8 May 2001 if it had known there was an intention to call further evidence from Mr Levick and from the plaintiff. In particular, it was submitted that the Bank’s counsel would not have commenced his address. This was important because as submitted, the Bank, having addressed extensively on the plaintiff’s credit, was potentially placed at a significant forensic disadvantage in relation to its ability to effectively cross-examine the plaintiff for what would be a third time. It was said that because counsel for the Bank had exposed its hand on the plaintiff’s credit, he would be a more ‘practiced’ witness and be ‘primed’ as to how to deal with further cross-examination. It was said that that had been noticeable on the second occasion of cross-examination and the problem would be more marked on a third occasion.

19 The second error was said to be her Honour’s acceptance of the plaintiff’s counsel’s submission that the application to recall Mr Levick made on 9 May 2001 was made at the first available opportunity. It was submitted that as counsel had turned his mind to the application on 8 May 2001, he should have made the application upon commencement of the hearing that day or sought an adjournment pending receipt of the report, so that the application could be made and dealt with before addresses.

20 I am not satisfied that her Honour erred in the respects alleged. The judgment revealed that her Honour carefully considered the Bank’s submissions. In particular, she considered the submissions in relation to the plaintiff’s credit. On that issue, she considered, first, that the fact the plaintiff had heard the submissions on credit was not a significant factor. Secondly, and in any event, she observed that it was open to the Bank to make submissions on credit in relation to the new evidence to be given by the plaintiff.

21 This view was clearly open to her Honour and bore the mark of good sense. Her Honour, having heard the evidence and having already seen and heard the plaintiff on two prior occasions, was in a peculiarly advantageous position to determine credit issues.

22 It was also open to her to accept that the application to call Mr Levick was made at the first available opportunity. She was aware from what she was told by counsel that there had been a discussion between counsel and Mr Levick on the morning of 8 May 2001. She obviously considered that, on the facts, the first opportunity to make the application was 9 May 2001. I do not consider that conclusion was erroneous.

23 Senior counsel for the Bank also submitted that her Honour erred in failing to give proper consideration to the prejudice the Bank would suffer in respect of costs if the application was allowed. First, it was submitted that the granting of the application would result in additional costs. Secondly, the plaintiff’s counsel had asserted in court that the plaintiff was impecunious. Therefore, it was said, there was uncertainty as to whether the Bank would be able to recover costs. It followed on this submission that in concluding that “any real prejudice to the defendant which cannot be compensated by an order for costs”, her Honour failed to appreciate the very real prejudice the Bank would suffer because of the potential inability to recover costs. In an associated submission, it was contended that her Honour’s reference to the possibility of the plaintiff’s legal representatives being made liable for the costs failed to adequately deal with the prejudice because, that too, remained uncertain.

24 In my opinion, these matters do not disclose any error in the exercise of the discretion. Her Honour considered the various matters she was required to take into account and came to a conclusion which was open to her.

25 In any event, had the further evidence been called during the course of the hearing, as it could and should have been, the costs of calling such evidence would have been incurred. To that extent, except for the time taken in dealing with the applications, it is difficult to see that additional costs will be incurred.

26 Further, I am not persuaded that her Honour’s discretion miscarried in any way. As I have said, she carefully weighed the competing considerations and determined that the applications should be granted. It is irrelevant that another judge may have refused the applications, allowing the plaintiff to fall into the forensic hole which had, quite permissibly, been dug for him by the Bank. But her Honour was not obliged to refuse the application. Her Honour correctly stated that the “guiding principle is whether the interests of justice are better served by allowing or rejecting the application” and considered in the circumstances, the application should be granted. That course was open to her. I consider that her Honour was also correct in concluding that Urban Transport Authority v Nweiser (1991) 28 NSWLR 471 did not require her to refuse the application.

27 I would therefore refuse leave to appeal. There is another reason why leave should be refused. The application for leave to appeal may be seen to be premature. The prejudice which the Bank claims it may suffer is, at this stage, only a possible prejudice. I am of the view that the case should be allowed to proceed on the basis of her Honour’s rulings. Should it eventuate that any of the potential prejudice is in fact suffered, the Bank will have its rights of appeal in relation thereto.

The Jurisdictional Point

28 Although the jurisdictional point requires some analysis it may be stated briefly. The Bank submits that the plaintiff’s claim in relation to the Bank’s exercise of the power of sale was properly brought as a suit in equity for an account and that the District Court has no jurisdiction to hear such a claim. Before dealing with the nature of a claim against a mortgagee for dereliction or deficiencies in the exercise of its power of sale, it is useful to return to the pleadings.

29 At the time the matter came on for hearing the plaintiff was proceeding with his claim as originally pleaded in the statement of claim. On the 6 April 2001, he filed an amended statement of claim. The amendments at that time related to claims made in respect of the worm farm. The pleading in relation to the exercise of the power of sale was not amended.

30 The pleading in relation to the exercise of the power of sale alleged:

“In exercising its powers of sale the [Bank) owed the [plaintiff] a duty of good faith and/or a duty to not wilfully or recklessly sacrifice the interests of the [plaintiff].
Further, and in the alternative, in exercising its’ power of sale the [Bank] owed to the [plaintiff] a duty to take care to obtain the best possible price for the Property.
…
In exercising its power of sale the [Bank] breached its duty to the [plaintiff] to act in good faith and/or duty to take all reasonable care to obtain the best possible price for the Property.”

31 The particulars alleged included:

(a) Failing to advertise the Property for a sufficient period of time and in a sufficiently large area to potential buyers.
…
(d) Failing to consent to the registration of the subdivision of the Property into two separate parcels (at the [plaintiffs] expense) which would have increased the value of the Property and enabled the Property to be sold as two separate parcels and for a greater price
(e) Failing to advertise or promote the commercial features of the Property including existing use rights for turf farming.
(f) Failing to advertise or promote the existence of underground irrigation on the Property.
…
(h) Selling the Property below the reserve price set for the auction and/or the market value of the Property.”

32 The plaintiff then pleaded:

“By reason of the [Bank’s] breach of duty, the [plaintiff] has suffered loss and damage.
Particulars
(a) Failure to obtain a true market value of the Property.
(b) Liability to the [plaintiff] for the shortfall between the value of the Property and the judgment debt.
(c) Loss of equity in the Property.
And the [plaintiff] claims:
1. Damages
2. [costs]
3. Such further order or other orders as the Court thinks fit.”

33 In the further amended statement of claim allowed by her Honour, the only amendment made was in respect of the relief claimed, which was expanded to include the following orders:

“ 2. Equitable damages
3. Equitable compensation
4. An order that an account be taken between the [plaintiff] and the [Bank] upon the basis that the [plaintiff] is to be credited with sums which the [Bank] ought to have received if it had exercised its power of sale properly together with interest on the balance due to the [plaintiff] at the rates prescribed in schedule J of the Supreme Court Rules.
5. Further to prayer 4, an order that the [Bank] pay to the [plaintiff] the sum found to be due on the taking of such account.”

34 The Bank submits however that the amended pleading does not assist the plaintiff because the only proceeding available to him is a claim for an account which cannot be brought in the District Court.

Nature of Action Against a Mortgagee

35 Senior counsel for the Bank submits that the authorities and the commentaries in respect of claims by mortgagors against mortgagees in respect of the exercise of the mortgagee’s power of sale are all to the same effect, namely that the proceeding is a claim in equity for an account.

36 In Coroneo v Australian Provincial Assurances Association Ltd (1935) 35 SR (NSW) 391, a mortgagor had brought common law proceedings in respect of the alleged irregular sale of old system land by the mortgagee. The mortgagee demurred to the pleading. Jordan CJ held at 395:

“The proper remedy of the plaintiff is a suit in equity in which, upon his offering to redeem or to account, he may, if he so desires, litigate the question of any alleged equitable delinquencies on the part of his mortgagee.”

37 Coroneo was applied in Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (1982) NSW ConvR 55-097. In that case the appellant had commenced proceedings for a claim for damages on the basis that the respondent had exercised its power of sale in breach of its duty.

38 Hutley JA said at 56,573:

“… there is no such proceeding known to New South Wales law. The true position was expounded by Sir Frederick Jordan in the case of Coroneo v Australian Provincial Assurance Association Limited 35 S.R. 391, in which he explained in detail that this is not the right form of action, that the only proceedings available are … when the sale has been completed, proceedings for accounts between the parties …”

39 Hope JA said at 56,575:

“The action was one for damages, albeit what was called equitable damages. It is quite clear that in New South Wales such an action does not lie on the part of the mortgagor against a mortgagee who is alleged to have improperly exercised his right of power of sale. Assuming the sale has been completed, as was the position in the present case, the mortgagor’s remedy lies in proceedings for accounts.”

40 Notwithstanding these authorities, it is arguably an open question in Australia whether there is available a common law claim in negligence against a mortgagee for, what I will describe loosely as a breach of the mortgagee’s duty of care in the exercise of a power of sale: see for example, Forsyth v Blundell (1973) 129 CLR 477; ANZ Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195. However, it is certainly not established that this is the case and I think that it is preferable on an application of the type presently before this Court to apply orthodox legal doctrine.

41 The various legal writings on the issue to which the Court was referred also speak with one voice as to the nature of the claim available to a mortgagor in such circumstances. In essence, the commentators state that an account is the appropriate form of relief where a mortgagee is alleged to have sold the mortgaged property at an undervalue or otherwise in breach of the mortgagee’s duty in relation to sale: see Fisher and Lightwood, Law of Mortgage (Australian Edition) 1995; Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd Ed, 1992; Sykes and Walker, The Law of Securities, 5th Ed, 1993; Ashburner’s Principles of Equity, 2nd Ed, 1933..

42 Relevantly for present purposes, Meagher, Gummow and Lehane in Equity Doctrines and Remedies, while only dealing with the issue briefly, referring the reader to the more specialised texts in the area, state at para 2513:

“… in the case where a mortgagee has exercised his power of sale, the mortgagor may successfully demand accounts if he is suing to recover surplus proceeds of sale .” (emphasis added)

43 A similar comment is made in Sykes and Walker at 142:

“The mortgagor is entitled to demand that accounts be taken by the court only in cases where he or she is claiming redemption or the surplus proceeds of sale .” (emphasis added)

44 Likewise Nevill and Ashe, Equity Proceedings with Precedent (New South Wales) 1981 at para 301 describe the remedy of accounts as:

“Usually [being] … a procedure to ascertain the monetary dealings of the parties in respect of the subject property and to determine with precision the balance due between them. After the balance is ascertained orders are made as to the rights of the parties to that balance .” (emphasis added)

45 It might be thought that these statements go without saying, as the very reason a mortgagor would be pursuing the mortgagee is to recover the moneys to which he or she claims to be entitled but for the delinquent exercise of the power of sale. This is in fact reflected in the final order which is made in such matters. Pendlebury v Colonial Mutual Life Assurance Society Limited (1912) 13 CLR 676, provides an example. That was a case in which the High Court determined that a mortgagee who, in the exercise of a power of sale disregarded the interests of a mortgagor, was liable to the same extent as a mortgagee who is liable for wilful default. Having found that the mortgagee was so liable, Griffiths CJ said at 692:

“The only question is the measure of relief to which the plaintiff is entitled.” (emphasis added)

46 The Chief Justice continued:

“I think, therefore, that the defendants are liable to account to the plaintiff for the amount which would have been realized on a sale of the property conducted without wilful default …”

47 The orders which were made included judgment for a money sum to be computed on the taking of accounts.

48 For present purposes therefore, it can be said that a claim for accounts is a claim for equitable relief where (as in this case) a mortgagor is suing a mortgagee to recover money being the alleged surplus proceeds of sale. The proceedings are not relevantly complete until an order to pay that balance is made.

49 The question then is whether such a proceeding falls within the jurisdiction of the District Court.

The Act

50 The District Court is a statutory court with specifically conferred jurisdiction. That jurisdiction includes limited equitable jurisdiction conferred by s 134 of the District Court Act 1973 (NSW). Prior to the District Court Amendment Act 1997 (NSW), the equitable jurisdiction of the District Court was that specified in s 134(1) (a) – (f), including foreclosure or redemption suits: para (a); specific performance, rectification of any agreement for the sale or purchase of property or the lease of property: para (b); Testator’s Family Maintenance and Family Provision Act applications: para (c); relief against fraud or mistake: para (d); the execution of a trust or a declaration that a trust subsists: para (e); and the administration of a deceased estate: para (f). The monetary jurisdiction in each case was, at the date of the amending Act, limited to $20,000.

51 In 1998, the District Court’s jurisdiction was expanded by the addition of, relevantly for present purposes, s 134(1)(h), which provides:

“any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which any other paragraph of this subsection applies), in an amount not exceeding $750,000.”

52 The monetary limit in para (h) is the same monetary limit as applies to actions in the Court for damages. Interestingly, the monetary limit for claims falling within paras (a) to (f) was not increased.

53 Senior counsel for the Bank submitted that given the context in which para (h) appears, namely in a series of well known equitable remedies, all limited to an amount of $20,000, it was apparent that the conferral of equitable jurisdiction was intended to be limited. It would, therefore, be surprising, it was said, if jurisdiction was conferred in respect of the equitable claim for accounts up to $750,000. This lack of symmetry between the provisions, it was argued, underscored the Bank’s basic proposition, namely that para (h) did not and was never intended to encompass a proceeding for accounts.

54 The lack of symmetry to which senior counsel referred may be a matter of comment. However, I would hesitate to attach any particular significance to it, particularly in the face of the clear words of the section.

55 The Bank also submitted that the opponent’s claim fell within para (d) – namely, relief against fraud or mistake and the opponent was thus precluded from claiming under para (h) by the parenthetical provision within para (h). The basis for this submission was that a claim such as the present was a claim seeking relief against fraud.

56 I do not agree. The authorities to which I have referred, and which are relied upon by the Bank, establish that the cause of action available to the opponent is a proceeding for accounts culminating in an order for payment of a balance due. That is juridically different from proceedings for relief against fraud.

57 The starting point for the construction of any legislative enactment is to “construe the language of the enactment in its natural and ordinary meaning, having regard to the context – which will include other provisions of the enactment, its history and the state of the law – as well as the purpose which the enactment seeks to achieve”: Malika Holdings v Stretton (2001) 178 ALR 218 per McHugh J at 225.

58 The Bank submitted that s 134(1)(h) as a matter of its own language, and, if necessary, as aided by the description of the remedy in the second reading speech, did not confer the necessary jurisdiction to enable the plaintiff’s claim, being a proceeding for an account to be brought in the District Court.

59 In the second reading speech, the operation of the new jurisdiction was described as follows:

“… the bill extends the equity jurisdiction of the District Court over claims involving money in the form of debt and damages to the extent of its new monetary limit of $750,000. This will allow the District Court to deal with those ancillary equitable issues which may arise from time to time in cases coming before the court involving a claim for debt and damages. Currently, petty nuisance and trespass cases involving injunctive relief must be tried in the Supreme Court; minor obligations cannot be specifically performed and actions at law cannot be defended by cross-claiming for equitable relief without transferring the matter to the Supreme Court.”

60 Pursuant to s 34 of the Interpretation Act NSW 1987, recourse can be had to the second reading speech either to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act: s 34(1)(a); or to determine the meaning of the provision where it is ambiguous or obscure: s 34(1)(b)(i); or, if the ordinary meaning was taken the provision would lead to a result that is manifestly absurd or is unreasonable: s 34(1)(b)(ii).

61 Although arguably s 34(1)(a) applies to this provision I do not consider that reference to the second reading speech is helpful in this case for the simple reason that the words used by the Minister, and in particular, those that I have emphasised, are different from the words of the provision. It is well established that “the words of a Minister must not be substituted for the text of the law”: R v Bolton, ex parte Beane (1987) 70 ALR 225 at 227-228.

62 The question which has to be determined therefore is whether a proceeding for an account is encompassed by the phrase “equitable claim for damages”. It is clearly an equitable claim. Is it a claim for “damages”?

63 The word “damages” can sometimes be found in the authorities in claims such as this by a mortgagor against a mortgagee. As cases such as Barns v Queensland National Bank Ltd (1906) 3 CLR 925 demonstrate, the word is sometimes used indiscriminately. Barns was a jury case. The jury found that the Bank had exercised its power of sale recklessly and without due regard for the interests of the owner. At first instance after the jury verdict, a judgment was entered based on the difference between the price for which the jury found the property should have been sold and the sale price. In effect, the jury had made findings in relation to the usual components of an account.

64 In the High Court, the jury’s verdict was upheld in respect of the wrongful exercise of the power of sale. The Court then stated:

“It remains to consider the measure of damages. In the case of the improper exercise of a power of disposition of property, … as the property cannot be restored to the beneficiaries, they are entitled to recover the value of their interest in it. … If the matters complained of were mere irregularities in the exercise of the power the measure of damages might be different.” (emphasis added)

65 In my opinion para (h) covers the claim made here – it is an “equitable claim … for the recovery of money”. As was explained in Meagher Gummow and Lehane, and in Sykes in the extracts quoted earlier, an action for an account is a claim to recover the surplus proceeds of sale, to which the mortgagor claims to be entitled. There is nothing in the express words of the provision, or within the context of the provisions conferring equitable jurisdiction on the Court, to exclude the claim nor is there any reason to limit the words “equitable claim or demand for recovery of money” to a claim “involving money in the form of debt” as was said in the second reading speech.

66 It follows from what I have said that I consider that a claim for accounts falls within para (h). Accordingly I would refuse the application for prohibition. Likewise, I would not interfere with her Honour’s order allowing the further amendment of the statement of claim. The orders I would propose, therefore, are:

(i) Application for leave to appeal refused;

(ii) Summons otherwise dismissed;

(iii) Claimant to pay the opponent’s costs.

67 BRYSON J: I agree with the judgment of Beazley JA and the orders she proposes but I add some observations on the meaning of para (h) of s.134(1) of the District Court Act 1973.

68 Legislation which confers jurisdiction without limiting any existing jurisdiction should receive an ample construction. Its own terms show that para (h) should not be seen as modifying or supplementing previous conferrals of jurisdiction, which until the enactment of para (h) were limited in amount to $20,000. The appearance in para (h) of the jurisdictional limit of $750,000 marks a wide reforming purpose. It would not accord with that purpose to construe para (h) with limiting implications based on the terms of earlier paragraphs, as if para (h) were one more increment in a connected series of conferrals. Harmony with earlier paragraphs is not to be expected. Paragraph (h) took a strikingly new direction away from earlier conferrals of equitable jurisdiction characterised by close definitions and small amounts. The parenthetical passage in para (h) shows, in my view exhaustively, in what ways the earlier paragraphs limit para (h).

69 The words in parentheses exclude from the conferral of jurisdiction in para (h) claims or demands of kinds to which any other paragraph applies, and classification by kinds is established by the whole terms of each earlier paragraph including the jurisdictional limit of $20,000 where it occurs, as it does in para (d). The claim greatly exceeds $20,000. I do not accept the Bank’s contention that the claim to recover equitable compensation or to have equitable compensation brought into account in respect of failure properly to exercise a power of sale is a claim of a kind to which para (d) applies and hence is excluded from para (h) by the words in parentheses.

70 I think too that the claim is not a claim for relief against fraud within the meaning of “fraud” in para (d). “Fraud” has many shades of meaning in contexts dealing with equitable claims and equitable remedies, and has sometimes been used in ways which extend to wrongful exercise of a power. Wrongful exercises can take many forms, to some of which “fraud” could readily be applied while it could only be applied to others in rare and specialised usage. A power can be abused by concocting the appearance of the sale at a false value to an interested party, but it can also be abused by proceeding with simple indifference to the interests of the mortgagor and sacrificing those interests by entering into a sale without addressing any question other than the amount required to pay the secured debt. Some abuses of powers of sale may fall within para (d) but the claim particularised does not do so because the allegations relate to disregard or sacrifice of the mortgagor’s interests and do not relate to corrupt or dishonest purported exercise of the power of sale.

********