Cunningham, A.D. & Ors v National Australia Bank Ltd & Ors [1987] FCA 600

Cunningham, A.D. & Ors v National Australia Bank Ltd & Ors [1987] FCA 600

Leave to appeal is refused because there is not sufficient doubt about Jenkinson J's conclusion that no serious question to be tried exists as to misleading or deceptive conduct or negligence; principles governing interlocutory injunctions restraining mortgagee's sale apply, and the applicants' claims for damages do not justify restraining the National Bank's power of sale.

Parties
Applicant: Alphonse D. Cunningham; Applicant: Marie F. Cunningham; Applicant: Brian Cunningham; Applicant: Antoinnette Cunningham; Applicant: Daniel Clement Cunningham; Applicant: Bridget Margaret Cunningham; Respondent: National Australia Bank Ltd; Respondent: Ian Connor; Respondent: Barry Donnellan; Respondent: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
09 November 1987
Procedural Posture
Leave to Appeal Application / Application for Leave to Appeal (from Interlocutory Judgment)
Outcome
Application for leave to appeal refused; applicants' motion dismissed with costs.
Legal Topics
Interlocutory Injunctions, Mortgagee Powers of Sale, Misleading or Deceptive Conduct, Negligence, Leave to Appeal
Banking and Finance Law Equity Trade Practices Interlocutory Injunctions Mortgagee Powers of Sale Misleading or Deceptive Conduct Negligence Leave to Appeal

Case Brief

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Parties

Alphonse D. Cunningham

Applicant

Marie F. Cunningham

Applicant

Brian Cunningham

Applicant

Antoinnette Cunningham

Applicant

Daniel Clement Cunningham

Applicant

Bridget Margaret Cunningham

Applicant

National Australia Bank Ltd

Respondent

Ian Connor

Respondent

Barry Donnellan

Respondent

Westpac Banking Corporation

Respondent

Procedural Posture

Leave to Appeal Application / Application for Leave to Appeal (from Interlocutory Judgment)

Legal Issues

  1. 1 Whether interlocutory injunction restraining exercise of mortgagee's power of sale was wrongly refused
  2. 2 Whether statements by bank officers constituted misleading or deceptive conduct under s.52 Trade Practices Act 1974
  3. 3 Whether bank was negligent or vicariously liable for officers' statements

Ratio Decidendi

Leave to appeal is refused because there is not sufficient doubt about Jenkinson J's conclusion that no serious question to be tried exists as to misleading or deceptive conduct or negligence; principles governing interlocutory injunctions restraining mortgagee's sale apply, and the applicants' claims for damages do not justify restraining the National Bank's power of sale.

Court Disposition

Application for leave to appeal refused; applicants' motion dismissed with costs.

Orders

  • The applicants' motion on notice dated 8 October 1987 be dismissed.
  • The applicants pay the firstnamed respondent's costs.