DWYER v COMMONWEALTH BANK OF AUSTRALIA [No 2] [1995] NSWCA 137

DWYER v COMMONWEALTH BANK OF AUSTRALIA [No 2] [1995] NSWCA 137

Given the High Court's change in the law in David Securities on mistake of law, it would be unfair to deprive the appellants of an opportunity to seek leave to adduce fresh evidence on that basis. Remitting the matter to the Commercial Division for that issue to be considered is just, and the orders regarding costs should stand.

Parties
Appellants: Mr and Mrs Dwyer; Respondent: Commonwealth Bank of Australia
Jurisdiction
Australia
Judgment Date
29 August 1995
Procedural Posture
Appeal / Application to Set Aside Previous Orders After Appeal Judgment; Decision on Notice of Motion
Outcome
application dismissed with costs
Legal Topics
Costs of Proceedings, Mistake of Law, Remittal of Issues, Withholding Tax Payments
Civil Procedure Banking Law Costs of Proceedings Mistake of Law Remittal of Issues Withholding Tax Payments

Case Brief

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Parties

Mr and Mrs Dwyer

Appellants

Commonwealth Bank of Australia

Respondent

Procedural Posture

Appeal / Application to Set Aside Previous Orders After Appeal Judgment; Decision on Notice of Motion

Legal Issues

  1. 1 Whether appellants should be permitted to lead further evidence regarding payment of withholding tax under a mistake of law
  2. 2 Whether the Court should set aside its previous order remitting the matter for determination of specific issues in light of High Court's decision in David Securities
  3. 3 Appropriate orders for costs of the appeal and earlier proceedings

Ratio Decidendi

Given the High Court's change in the law in David Securities on mistake of law, it would be unfair to deprive the appellants of an opportunity to seek leave to adduce fresh evidence on that basis. Remitting the matter to the Commercial Division for that issue to be considered is just, and the orders regarding costs should stand.

Court Disposition

application dismissed with costs

Orders

  • Application by Commonwealth Bank of Australia to set aside previous orders dismissed with costs.
  • Matter remains remitted to the Commercial Division for determination of identified issues.