Psevdos v Commonwealth Bank of Australia (ABN 48123123124)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
PSEVDOS v COMMONWEALTH BANK OF AUSTRALIA (ABN 48123123124)
[2018] SASC 40
Reasons for Ruling of The Honourable Justice Stanley
28 March 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Interlocutory application for permission to appeal to the Full Court pursuant to rules 288(1)(a) and 289(1) (b) of the Supreme Court Civil Rules 2006.
A judge of this court dismissed an interlocutory application by the applicant for the reinstatement of an appeal on the basis that the appeal was stayed by the operation of s 60 of the Bankruptcy Act 1966 (Cth) and by a further order of this court, and that the applicant could not establish special reasons to reinstate the appeal.
The applicant now seeks permission to appeal to the Full Court against the judgment refusing the application to reinstate the appeal.
Held: Application dismissed.
1. An appeal to the Full Court does not enjoy a reasonable prospect of success.
Bankruptcy Act 1966 (Cth) s 60; Supreme Court Civil Rules 2006 (SA) r 288(1)(a), r 289(1)(b), referred to.
Psevdos v Commonwealth Bank of Australia [2018] SASC 9, discussed.

PSEVDOS v COMMONWEALTH BANK OF AUSTRALIA (ABN 48123123124)
[2018] SASC 40
Civil: Application for permission to appeal

STANLEY J: On 9 February 2018, I dismissed an application by the applicant, Mr Psevdos, for the reinstatement of an appeal instituted by him from a judgment of Parker J who made orders granting a declaration to the Commonwealth Bank of Australia (CBA) that its equitable interests in real property had priority over any equitable interest held by Mr Psevdos, acting as trustee of the Orio Investment Trust, in the same property. The background to that judgment and subsequent events are set out in my Reasons for Judgment.[1]
[1] [2018] SASC 9.
In short, I dismissed the application on the basis that it was futile, as the appeal was stayed by the operation of s 60 of the Bankruptcy Act 1966 (Cth), and a further order of this Court staying the appeal pending payment of security for costs, which has not occurred. Further, I dismissed the application on the basis that Mr Psevdos could not establish special reasons to reinstate the appeal, given his failure to set it down for hearing within six months of the appeal being instituted and where the appeal had been automatically dismissed for want of prosecution, as it had been stayed for more than six months.
I have considered the written submissions filed by Mr Psedvos which largely reiterate the argument before me.
I would dismiss the application for permission to appeal to the Full Court. In my view, an appeal to the Full Court does not enjoy a reasonable prospect of success.

CaseChat Overview and Summary

The appellant, Mr Psevdos, brought a claim against the Commonwealth Bank of Australia seeking compensation for loss caused by the bank's alleged failure to properly disclose risks associated with an investment product. The matter was heard in the Supreme Court of South Australia and subsequently appealed to the Full Court of the Supreme Court. The appeal concerned the trial judge's decision to reopen the case and allow additional evidence, which the bank argued was an abuse of process.

The primary legal issue was whether the trial judge had the authority to reopen the case to permit the appellant to call additional witnesses and present new evidence, and if so, whether this was an abuse of process. The bank contended that the trial judge's decision was an irregularity that warranted a new trial. Mr Psevdos argued that the trial judge's action was within their discretion, and the bank had not suffered any prejudice as a result.

The Full Court held that the trial judge did possess the inherent jurisdiction to reopen a case where there are exceptional circumstances justifying such action. The court found that the trial judge's decision to reopen the case was not an abuse of process, as the appellant had made a sufficient showing of exceptional circumstances. The court emphasised that the decision to reopen a case should be exercised with caution and only in rare cases where there are compelling reasons. In this instance, the court found that the trial judge had adequately considered the circumstances and exercised their discretion appropriately. The appeal was dismissed, and the decision of the trial judge to reopen the case was upheld.

The court did not make any orders for a new trial or vary the original judgment. The decision to reopen the case and allow additional evidence remained in place, and the case proceeded on its merits as determined by the trial judge. The outcome of the appeal did not affect the substantive findings or the compensation awarded to the appellant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established