TUGVALE PTY LIMITED v COMMONWEALTH BANK OF AUSTRALIA [1993] NSWCA 274

TUGVALE PTY LIMITED v COMMONWEALTH BANK OF AUSTRALIA [1993] NSWCA 274

The application for leave to appeal cannot succeed because the proposed fresh evidence was available at trial and not tendered, and the legal argument regarding relevance of loss was not argued at trial and is contrary to existing authority.

Parties
Claimant: TUGVALE PTY LIMITED; Opponent: COMMONWEALTH BANK OF AUSTRALIA
Jurisdiction
Australia
Judgment Date
13 December 1993
Procedural Posture
Summons for Leave to Appeal / Court of Appeal Decision
Outcome
summons for leave to appeal dismissed with costs; related motions dismissed
Legal Topics
Failure to Insure, Statutory Power of Sale
Mortgages Failure to Insure Statutory Power of Sale

Case Brief

Summary, issues, holding and outcome

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Parties

TUGVALE PTY LIMITED

Claimant

COMMONWEALTH BANK OF AUSTRALIA

Opponent

Procedural Posture

Summons for Leave to Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether failure to insure by mortgagor sustains exercise by mortgagee bank of statutory power of sale
  2. 2 Whether fresh evidence not tendered below should be admitted
  3. 3 Whether failure to insure was relevant to any loss incurred by the mortgagee

Ratio Decidendi

The application for leave to appeal cannot succeed because the proposed fresh evidence was available at trial and not tendered, and the legal argument regarding relevance of loss was not argued at trial and is contrary to existing authority.

Court Disposition

summons for leave to appeal dismissed with costs; related motions dismissed

Orders

  • Summons for leave to appeal dismissed with costs
  • Motions dismissed