Jinman v ANZ

In Jinman v ANZ, the appellant, Mr Jinman, appealed against an order for possession of his property at Cambrai, South Australia, made pursuant to Part 17 of the Real Property Act 1886 (SA). The bank, ANZ, sought to enforce a mortgage over the property due to Mr Jinman’s failure to meet the mortgage repayments. The primary legal issue was whether the Master erred in finding that Mr Jinman had not raised an arguable case that warranted the ordering of pleadings and referral to trial. Mr Jinman argued that the mortgage over the property was invalid because it secured a business loan rather than a home loan, and he provided affidavits to support this claim. The Bank opposed the admission of the affidavits, arguing that the evidence could have been obtained with reasonable diligence and would not have influenced the outcome. The court received the evidence de bene esse but ultimately dismissed the appeal, finding that the new evidence did not affect the decision to grant the order for possession. The court held that the Master was entitled to make the order for possession if satisfied that there was no triable issue raised on the evidence and that Mr Jinman had not demonstrated a dispute of substance that warranted the ordering of pleadings and referring the dispute to trial.

The appeal hinged on the Master's determination that Mr Jinman had not raised an arguable case supported by some evidence which could give rise to a particular defence. The court noted that the Master was not required to be satisfied beyond reasonable doubt but only that there was some evidence which, if accepted, could give rise to a particular defence. The Master found that Mr Jinman had not met this threshold. The court upheld the Master's decision, finding that the new evidence provided by Mr Jinman did not alter the outcome. The court held that the Master correctly applied the law and that Mr Jinman's allegations of breach of contract, unconscionable conduct, and fraud did not establish a triable issue. The court concluded that the order for possession should stand as the Bank had established a valid claim to enforce the mortgage over the property.