Bryant, Adrian Cecil v Australian & New Zealand Banking Group Ltd [1996] FCA 232

Bryant, Adrian Cecil v Australian & New Zealand Banking Group Ltd [1996] FCA 232

Leave to appeal was refused because the claims sought to be advanced would fail irrespective of the arguments about res judicata and Anshun estoppel: mortgage-related claims were caught by the unimpeached release executed by the applicant, and the power of sale challenge was precluded by the applicant's acknowledgment, undertaking, acquiescence, or estoppel by conduct.

Jurisdiction
Australia
Judgment Date
12 April 1996
Procedural Posture
Application for Leave to Appeal Under the Federal Court Rules O52 R10 / On Appeal From a Single Judge of the Federal Court of Australia; Application for Leave to Appeal Dismissed
Outcome
The application for leave to appeal is dismissed with costs.
Legal Topics
['leave to Appeal' 'res Judicata' 'anshun Estoppel' 'release of Claims' 'mortgage Enforcement' 'power of Sale Under Real Property Act 1900 (nsw) S57(2)(b)']
['civil Procedure' 'banking and Finance' 'real Property' 'estoppel'] ['leave to Appeal' 'res Judicata' 'anshun Estoppel' 'release of Claims' 'mortgage Enforcement' 'power of Sale Under Real Property Act 1900 (nsw) S57(2)(b)']

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Procedural Posture

Application for Leave to Appeal Under the Federal Court Rules O52 R10 / On Appeal From a Single Judge of the Federal Court of Australia; Application for Leave to Appeal Dismissed

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to appeal from orders dismissing claims against the Bank.' 'Whether claims relating to the mortgage contract were precluded by the release in clause 5(q) of the Short Minutes of Order of 18 November 1993.' "Whether the applicant was precluded by acquiescence or estoppel from challenging the Bank's exercise of power of sale." "Whether it was necessary to decide the criticisms of the primary judge's application of res judicata and Anshun estoppel."]

Ratio Decidendi

Leave to appeal was refused because the claims sought to be advanced would fail irrespective of the arguments about res judicata and Anshun estoppel: mortgage-related claims were caught by the unimpeached release executed by the applicant, and the power of sale challenge was precluded by the applicant's acknowledgment, undertaking, acquiescence, or estoppel by conduct.

Court Disposition

The application for leave to appeal is dismissed with costs.

Orders

  • ['The application for leave to appeal be dismissed.' "The applicant pay the respondent's costs of the application."]