Mytton-Watson v Commonwealth Bank of Australia

The case of Mytton-Watson v Commonwealth Bank of Australia involved the appellants, Mytton-Watson, and the respondent, the Commonwealth Bank of Australia. The dispute centred on an application by the Mytton-Watsons to extend the time in which to appeal a decision made by the District Court of Western Australia, and for a stay of summary judgment. The matter related to mortgages on two properties held by the Mytton-Watsons as security for loans obtained from the bank.

The legal issues before the court were whether the Mytton-Watsons had a triable issue concerning misleading or deceptive conduct by the bank, and whether the court should grant an extension of time to appeal the decision and a stay of the summary judgment. The Mytton-Watsons argued that there was a possibility of misleading or deceptive conduct by the bank, and that they were not provided with necessary information in a timely manner. They also contended that they were not prejudiced by a stay because the bank continued to hold the assets as security.

The court found that the Mytton-Watsons' affidavits did not provide the necessary level of particularity concerning the alleged triable issue of misleading or deceptive conduct. The court also found that the Mytton-Watsons had not deposed to the 'information' which they say they 'now' have which 'suggests' that the broker was an agent of the bank. Moreover, the court found that the mortgage over one of the properties secured all amounts owing under the three loan agreements, and the Mytton-Watsons had not explained the basis upon which they could have sold that property and obtained a discharge of the mortgage over it, without first paying off the whole of the debt owing to the bank, or reaching some other accommodation acceptable to the bank.

The court concluded that there was no basis for allowing the extension of time in which to appeal against the order for possession. The court found that there was nothing in the materials provided by the Mytton-Watsons to suggest that there was any prospect of success in contending that the appellants had or have a triable issue that the bank was not entitled to possession of both properties under the mortgages. The court also found that the only matter which might provide any justification for the grant of an extension of time, and even then only with respect to the order as to the payment of the money sum, was the arguable error with respect to the master acting upon Ms Kennedy's affidavit of 13 June 2012 when it had not been provided to the appellants.

The court dismissed the application to extend time in which to appeal, and the application for a stay of summary judgment. The Mytton-Watsons were ordered to pay the bank's costs of the appeal.