State Bank v Lo - [2000] NSWSC 1191

CITATION: State Bank v Lo [2000] NSWSC 1191

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3905/96, 3847/97, 3848/97

HEARING DATE(S): 30 & 31 October, 1 & 2 November, 14 December 2000

JUDGMENT DATE: 18 December 2000

PARTIES :

3905/96
Helen Rose Lo (P1)
Bue Lo (P2)
State Bank of New South Wales (D)
3847/97
State Bank of New South Wales (P)
Bue Lo and Helen Rose Lo (D)
3848/97
State Bank of New South Wales (P)
Helen Rose Lo (D)

JUDGMENT OF: Austin J

COUNSEL : Mr R Harper (State Bank of New South Wales))
Mr M Duncan (Mr & Mrs Lo)

SOLICITORS: Garland Hawthorn Brahe (State Bank of New South Wales)
Pigott Stinson Ratner (Mr & Mrs Lo)

CATCHWORDS: CONTRACT - conduct after offer of settlement - no settlement agreement, where conduct did not correspond with offer MORTGAGE - s 57(2)(b) notice, requirements EVIDENCE - witness unavailable - whether affidavit admissible

CASES CITED: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No.2) (2000) 96 FCR 491
Bond Media Ltd v John Fairfax Group Pty Ltd (NSWCA, Giles J, 16 December 1998, unreported).
Bunbury Foods Pty Ltd v National Bank of Australasia Limited (1984) 153 CLR 491
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commercial Development Bank of Australia Limited v Cochrane (NSWSC, Giles J, 28 October 1998, unreported)
Conley v Commonwealth Bank of Australia (NSW CA, 4 May 2000)
Crips (RA) & Son v Wickenden [1973] 1 WLR 944
Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643
Elders Rural Finance v Smith (1996) 41 NSWLR 296
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Jenkins v National Australia Bank (1999) V Conv R 54-602)
Lustre Hosiery Ltd v York (1935) 54 CLR 134
O’Day v Commercial Bank of Australia Limited (1933) 50 CLR 200
Parres Holdings Pty Ltd v Commonwealth Bank of Australia [1998] FCA 682
Shea v Green (1886) 2 TLR 533
Silkdale Pty Ltd v Long Leys Co Pty Ltd (1995) 7 BPR 14,414
TC v State of New South Wales (NSWSC, unreported, 3 November 1997)
Turnbull v National Mutual Royal Bank Ltd (1992) 26 NSWLR 361
Williams & Glyn's Bank Ltd v Barnes [1980] Comlr 250 at 210
Yerkey v Jones (1939) 63 CLR 649
Zanzoul v Westpac Banking Corporation (NSWCA, 14 June 1995, unreported)

DECISION: Order for possession; application to set aside judgment for possession dismissed; mortgagors' proceedings for relief dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 18 DECEMBER 2000

3905/96, 3847/97, 3848/97. STATE BANK OF NEW SOUTH WALES V HELEN ROSE LO & ANOR
JUDGMENT

The three proceedings

1 These are three proceedings arising out of a dispute between Mr and Mrs Lo and the Bank concerning its loans to them and their mortgages to it. The first two proceedings were brought by the Bank in the Common Law Division of this Court (Nos 10580 and 10581 of 1991), seeking to recover possession of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 1191
Decision Date: 18 December 2000

CaseChat Overview and Summary

In this case, the plaintiff, State Bank, brought an action against the defendants, Lo, to enforce a mortgage over certain property. The defendants raised a defence based on the grounds that the plaintiff's actions constituted an unreasonable delay in enforcing the mortgage, and that there had been an offer of settlement that was not honoured. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether there was a binding settlement agreement between the parties, and if not, whether the plaintiff's conduct amounted to an unreasonable delay in enforcing the mortgage. A further issue was whether an affidavit from a witness who was unavailable to give oral evidence should be admitted as evidence. The court had to determine the admissibility of the affidavit and its weight in the context of the case.

The court held that there was no binding settlement agreement between the parties because the defendants' conduct did not correspond with the offer of settlement made by the plaintiff. The court found that the defendants' conduct did not constitute an unreasonable delay in enforcing the mortgage, as there were legitimate reasons for the delay. The court also held that the affidavit from the unavailable witness was admissible as evidence, but its weight was limited due to the absence of cross-examination. The court ultimately found in favour of the plaintiff, but the case was remitted to the primary judge for a reassessment of the damages.

The final orders of the court were that the mortgage was enforceable, and the defendants were liable for the outstanding debt plus interest. However, the case was remitted to the primary judge for a reassessment of the damages, taking into account the evidence and submissions made during the appeal. The court did not make any orders regarding costs.

Orders