Davies v Commonwealth Bank of Australia - [2025] SASCA 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DAVIES v COMMONWEALTH BANK OF AUSTRALIA
[2025] SASCA 12
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
4 February 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
COURTS AND JUDGES - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
The appellant (Mr Davies) commenced proceedings against the respondent (the Bank) in June 2023 seeking relief in relation to the Bank’s possession and sale of a property that Mr Davies had owned with his now deceased wife. The Bank sought summary judgment, relying upon a deed of settlement and limitation periods which it argued barred Mr Davies’ claims. The primary judge granted the Bank’s application and ordered summary judgment in its favour.
Mr Davies appeals the primary judge’s decision. He relies upon several grounds of appeal which challenge the Bank’s conduct both in relation to its possession and sale of the property, and in reliance upon the deed of settlement.
Held, per the Court, dismissing the appeal:
1.The appellant has not identified any error in the reasons or conclusion reached by the primary judge.

Uniform Civil Rules 2020 (SA) rr 131.1(5), 144.2(2)(a), referred to.
Atkins v Hughes [2019] SASCFC 49; Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; Tomasevic v Travaglini (2007) 17 VR 100; UBS AG v Tyne (2018) 265 CLR 77; Zhengtang Precinct Loft Pty Ltd v The Corporation of the City of Adelaide [2024] SASCA 148, considered.

DAVIES v COMMONWEALTH BANK OF AUSTRALIA
[2025] SASCA 12
Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA

THE COURT (ex-tempore): The appellant (Mr Davies) commenced proceedings against the respondent (the Bank) in June 2023 seeking relief in relation to the Bank’s possession and sale of a property that Mr Davies had owned with his now deceased wife. The Bank sought summary judgment, relying upon a deed of settlement and limitation periods which it argued barred Mr Davies’ claims. The primary judge granted the Bank’s application and ordered summary judgment in its favour.
Mr Davies appeals that decision. He relies upon several grounds of appeal which challenge the Bank’s conduct both in relation to its possession and sale of the property, and in reliance upon the deed of settlement.
For the reasons which follow, the appeal should be dismissed. The submissions of Mr Davies seek impermissibly to raise matters not agitated below. In any event, the matters sought to be raised would be barred by the release in the deed of settlement, and Mr Davies has not otherwise identified any error in the reasons or conclusion reached by the primary judge.
Background
Mr Davies and his wife were the registered proprietors of a property at Quinns Road, Forreston, in South Australia (the Property). The Property was subject to a mortgage in favour of the Bank.
Mr Davies and his wife fell behind in their mortgage payments and, in 2010, the Bank commenced proceedings in the Supreme Court seeking possession of the Property. The Bank obtained an order for possession, and subsequently obtained a warrant for possession. The Bank took possession of the Property in March 2012, and sold it in December 2012. The proceeds from the sale of the Property were not sufficient to discharge the amount owing under the mortgage (and related loan agreements), resulting in a shortfall of approximately $357,000.[1]
[1] Respondent’s submissions; cf the figure of approximately $394,000 specified in the applicant’s submissions and the pleaded counterclaim.
In 2018, Mr Davies and his wife commenced proceedings in the District Court against the Bank (the District Court proceedings). In those proceedings, Mr Davies and his wife sought equitable compensation and damages from the Bank for alleged breaches of its duties as mortgagee in possession (and exercising its power of sale), and other misconduct. The Bank filed a defence in which it denied the alleged breaches and other misconduct, and counterclaimed for the shortfall mentioned above.
The central allegations against the Bank in the District Court proceedings were that the Bank had: unlawfully taken possession of the Property; failed to properly market the Property for sale; sold the Property for less than its true value; engaged in misleading or deceptive conduct and/or acted unconscionably in its conduct, including in taking possession of the Property; and sold the Property for $740,000 when its true value was between $1.4 million and $1.5 million, causing Mr Davies and his wife to suffer losses of $760,000.
Mr Davies and his wife were represented by solicitors in the District Court proceedings.
The parties to the District Court proceedings attended court mediations on 23 September 2019 and 7 July 2020. At the second of these mediations, Mr Davies and his wife were represented by counsel. As reflected in the record of outcome, the parties resolved the District Court proceedings, and a formal deed was to be prepared and signed.
A settlement deed was signed by Mr Davies, his wife and the Bank (the settlement deed). The settlement deed was not dated, but was signed by around 20 July 2020. Amongst other things, the settlement deed contained mutual releases, including in respect of the Bank’s claim for the shortfall; required the Bank to pay Mr Davies and his wife $7,500; and required the parties to discontinue their claims in the District Court proceedings. Notices of discontinuance were subsequently filed. The settlement deed also contained a warranty from Mr Davies and his wife that they had received independent legal advice in relation to the District Court proceedings, the mediation, the settlement deed and in relation to the dealings between the parties.
On 16 June 2023, almost three years after entry into the settlement deed, Mr Davies commenced these proceedings in the Supreme Court. Mr Davies’ claim sought orders that he be reinstated as the registered proprietor of the Property, and for compensation. Mr Davies also filed an interlocutory application seeking various documents from the Bank.
At the first directions hearing, on 3 July 2023, the Bank’s solicitor raised the existence of the settlement deed and its bearing on the proceedings. The proceedings were adjourned to allow the Bank to write to Mr Davies setting out its position, which the solicitors for the Bank then did. At the second directions hearing, the Bank made an oral application for the proceedings to be dismissed on the basis that Mr Davies’ claims were not reasonably arguable, particularly in light of the settlement deed. However, the judge declined to make the order sought without a formal application and argument. The judge adjourned the matter for three months to enable Mr Davies to consider how he wished to proceed and encouraged him to seek legal advice. At the third directions hearing, the judge’s remarks included reference to the difficulty for Mr Davies presented by the settlement deed, and noted that he intended to seek legal advice and, if appropriate, assistance in redrafting his claim. At the fourth directions hearing, the judge’s remarks again made reference to the difficulty presented by the settlement deed. They also included reference to Mr Davies abandoning his application for access to documents, and intending to file an amended statement of claim.
Mr Davies filed an amended statement of claim prior to the fifth directions hearing. At that directions hearing, the Bank’s application for summary judgment was timetabled for argument. Mr Davies subsequently filed an affidavit in response to the Bank’s application, and in support of an application to set aside the settlement deed.
The primary judge’s decision
On 30 April 2024, the primary judge heard argument and granted the Bank’s application, ordering summary judgment in favour of the Bank pursuant to r 144.2(2)(a) of the Uniform Civil Rules 2020 (SA).
In his ex tempore reasons, the primary judge explained that the Bank’s position was that there was no reasonable basis for the prosecution of Mr Davies’ claim. The Bank also argued that, in seeking the various forms of relief sought, Mr Davies’ claim was out of time and no basis was disclosed for the Court to exercise any discretion to extend time.
In addressing the lack of merit in Mr Davies’ claim in the Supreme Court proceedings, the primary judge explained that it sought to raise matters which largely replicated the matters raised in the earlier District Court proceedings. Further, as the judge explained, those earlier proceedings had been resolved through mediation and entry into the settlement deed. Clause 3 of the settlement deed recorded that the applicant released and discharged the Bank from all actions, suits, claims, demands and liabilities relating directly or indirectly to the District Court proceedings. The judge noted that Mr Davies was represented by counsel throughout the course of the mediation process and the subsequent execution of the settlement deed.
The judge concluded that the settlement deed stood as a bar to Mr Davies’ claims in the Supreme Court proceedings, and justified an order for summary judgment in the Bank’s favour:
As I informed the applicant, in the course of argument, in circumstances where a party enters into a properly constituted deed, the party will be bound by the matters agreed to in the deed, absent any suggestion of unlawful or improper behaviour on the part of the legal representatives of the parties or, indeed, the other party to the deed.
The applicant’s claim in this proceeding, paragraph 1.10, adverts to ‘setting aside the deed of settlement’. However, during the course of his submissions Mr Davies made no complaint to suggest that any of the matters which the courts have acknowledged could lead to the setting aside of a deed, existed in the circumstances of the execution of the deed in question. In short, he did not suggest, for example, that he did not understand what he was signing or that he was misled about the deed by the bank or the respective legal representatives. As I also have explained to the applicant, the courts have, for decades, determined to uphold deeds of this nature where they have been properly entered into and have ‘set their face’ against the re-litigation or re-agitation of claims where a properly constituted deed seeks to resolve all issues between the parties.
In my view the respondent’s claim for summary judgment is made out on the basis that the deed as executed stands as a bar to future proceedings and means that there is no reasonable basis for the court to conclude that a successful prosecution of the applicant’s claim can occur.
The primary judge added that, as presently constituted, the claim would constitute an abuse of process on the basis that it sought to relitigate a claim that has already been the subject of a resolution in a mediation in the District Court, as reflected in the settlement deed.
His Honour concluded by observing that, had it been necessary to consider the question of Mr Davies’ claim being out of time, ‘on the face of the material before the court it is clearly out of time and there has been no basis put forward as to why the court should exercise a discretion to extend the time’. His Honour said that, in these circumstances, he would have declined to extend time.
As mentioned, the judge ordered summary judgment in the Bank’s favour. His Honour also ordered that Mr Davies pay the Bank’s costs of the proceedings.
The appeal
By his amended notice of appeal, Mr Davies seeks orders that the summary judgment be struck out, the settlement deed be set aside, and the costs order be stayed. Properly understood, his appeal seeks to challenge the order for summary judgment, essentially arguing that the primary judge erred in concluding that there was no reasonable basis for the claim he sought to advance, whether by reason of the settlement deed or otherwise.
In resisting the appeal, the Bank argues that several of the matters sought to be relied upon in Mr Davies’ submissions were not raised below and should be ignored by this Court. It also argues that, in any event, no error has been identified in the primary judge’s decision. Mr Davies was represented throughout the District Court proceedings, and no proper basis for impugning the settlement deed has been identified. The matters sought to be raised are precluded by the terms of the settlement deed, but in any event are without merit and out of time.
An order for summary judgment in a respondent’s favour, dismissing an applicant’s claim, is ordinarily interlocutory in nature and requires leave to appeal. However, the position may be otherwise where the summary judgment in favour of the respondent is predicated upon the Court accepting that the respondent has a good basis for defending the claim, for example, as here, by relying upon a deed of settlement. In that case, the decision to grant summary judgment inherently involves some determination of the merits of the respondent’s defence. By analogy with those cases which suggest that an order for summary judgment in an applicant’s favour may be final rather than interlocutory (by reason that it inherently involves a determination of the merits of the claim), an order for summary judgment in favour of a respondent in a case such as the present may well be final rather than interlocutory.
In referring the matter to this Court, a single judge concluded that the primary judge’s decision was final rather than interlocutory. It is not necessary to reach any final conclusion on this issue because the Bank is content to proceed on the basis that Mr Davies was entitled to appeal. The Bank having acceded to an approach which involves this Court considering the appeal on its merits, it is appropriate to proceed in that way.
Merits of the appeal
Before the primary judge, Mr Davies argued that he never received a signed copy of the Deed, and that the Bank failed to attend the mediation of the District Court proceedings through an authorised representative in accordance with r 131.1(5) of the Uniform Civil Rules. Neither of these arguments was pursued before this Court, or otherwise has any merit.
Although he asserted a claim for fraud before the primary judge, apparently on the basis that it entitled him to set aside the settlement deed, Mr Davies did not articulate any basis for that claim. Hence the primary judge proceeded on the basis that there was no proper allegation of fraud, or any other basis for setting aside the settlement deed.
On appeal, Mr Davies argued that the settlement deed should be set aside on various grounds, which he described as involving illegality, misrepresentation, undue influence and duress. He also argued that the Bank’s reliance upon the settlement deed involved an abuse of the Court’s processes because it was being used to conceal the Bank’s unlawful activity. Mr Davies’ written and oral submissions in support of these allegations were diffuse and confused. They included allegations to the effect: that various aspects of the parties’ dealings in relation to the Property and mortgage assumed it was a residential property whereas in reality it was a rural property intended for primary production; that the Bank had failed to account for the proceeds of the lender’s mortgage insurance taken out by Mr Davies and that he was not provided with complete information in relation to that insurance; that the Bank had acted wrongfully and unlawfully in taking possession of the Property; and that the Bank had acted wrongfully in connection with the sale of the Property, and in failing to obtain a reasonable value for the sale of the Property.
The allegations were generally unparticularised and difficult to understand. However, what is clear is that they seek to raise matters which were not properly raised during the proceedings before the primary judge. The nature of the matters sought to be raised is such that they ought to have been raised at first instance. To a greater or lesser extent, they all rely upon factual issues that were not the subject of any evidence at first instance. Given the strong public interest in holding parties to their conduct of proceedings below, the Court will not usually permit an appellant to raise such matters for the first time on appeal.[2] Even having due regard to the fact that Mr Davies is not represented, there does not seem to be any good reason to permit that to occur in the present case.
[2] Zhengtang Precinct Loft Pty Ltd v The Corporation of the City of Adelaide [2024] SASCA 148 at [151] (Livesey P, S Doyle and Bleby JJA) and the authorities cited therein.
Even if Mr Davies were permitted to raise these allegations, he has not put forward a proper basis for this Court to conclude that any of them are reasonably arguable. More fundamentally, and in any event, it would appear that all of the allegations would be barred by the release in the settlement deed. Unlike the allegations in one of the authorities relied upon by Mr Davies,[3] his allegations relate to matters which predate entry into the settlement deed. Mr Davies has not articulated a reasonable basis for concluding that any of the allegations would not be barred by the release in the settlement deed. As the primary judge explained, the terms of the release are broad and clear, and Mr Davies had legal representation at the time of entry into the settlement deed.
[3] Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149.
In his oral submissions on behalf of the Bank, Mr Wilson acknowledged that two of Mr Davies’ allegations might be said to challenge the enforceability of the settlement deed; namely, his allegations that it was not properly constituted and that its entry was affected by undue influence. However, neither of those allegations has any merit. The terms of the settlement deed are clear and it is plainly properly constituted. The allegation of undue influence is not only entirely unparticularised, but also makes no attempt to address the fact that Mr Davies was legally represented at the time of entry into the settlement deed.
In addition to the above, the Bank contends that any attempt by Mr Davies to pursue his allegations would also confront the difficulty that the claims sought to be relied upon would be out of time, and with no obvious basis for any extension of time. Mr Davies did not seek to address this concern raised by the Bank in any detail in his submissions. However, given the views already expressed, it has not been necessary to reach a concluded view about this aspect of the Bank’s submissions.
In considering the merits of this appeal, we have been mindful of the fact that Mr Davies is not legally represented, and also represented himself at first instance in these proceedings. However, it is apparent from the procedural history recounted earlier in these reasons that Mr Davies understood the nature of his task, and has been given a fair opportunity to advance his claim.[4] He was aware from the outset of these proceedings of the significance of the settlement deed to the claim he sought to advance, and this was reinforced in each of the directions hearings in the matter. Efforts were made by the Bank and the judge to explain the task that confronted Mr Davies, and he was encouraged, and given ample opportunity, to seek legal assistance. We are satisfied that Mr Davies has had a fair opportunity to identify the issues and present his case.[5]
[4] See, for example, Atkins v Hughes [2019] SASCFC 49 at [37]-[39] (Kourakis CJ, Kelly and Parker JJ); Tomasevic v Travaglini (2007) 17 VR 100 (Bell J).
[5] UBS AG v Tyne (2018) 265 CLR 77 at [38] (Kiefel CJ, Bell and Keane JJ).
Conclusion

No error has been identified in the primary judge’s reasons or conclusion. The appeal should be dismissed.