Donnelly v Australia and New Zealand Banking Group Limited [2015] NSWCA 341

Donnelly v Australia and New Zealand Banking Group Limited [2015] NSWCA 341

Darke J did not require Ms Donnelly to prove due diligence and made no error in concluding that the summons disclosed no reasonable cause of action. Ms Donnelly knew at the time of the trial before Stevenson J the facts on which she later sought to allege fraud, including the differences between the facility letter signed on 12 June 2008 and the 10 June 2008 email attachment, so the fraud claim was not based on newly discovered material facts. The identity of ANZ Asia as lender and its separate status from the Bank were disclosed in the letter of offer. The default judgment point was not pursued by submissions and did not provide a basis for appeal. Leave would not be granted, and...

Jurisdiction
Australia
Judgment Date
04 November 2015
Procedural Posture
Application for Extension of Time and Summons Seeking Leave to Appeal From an Interlocutory Order Summarily Dismissing Proceedings / Court of Appeal Application for Extension of Time and Leave to Appeal
Outcome
Notice of motion filed 19 August 2015 seeking an extension of time and summons seeking leave to appeal both dismissed with costs.
Legal Topics
['summary Dismissal' 'leave to Appeal' 'extension of Time' 'judgment Allegedly Procured by Fraud' 'fresh Facts Discovered Since Trial' 'no Reasonable Cause of Action']
['civil Procedure' 'banking and Finance' 'equity'] ['summary Dismissal' 'leave to Appeal' 'extension of Time' 'judgment Allegedly Procured by Fraud' 'fresh Facts Discovered Since Trial' 'no Reasonable Cause of Action']

Case Brief

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Procedural Posture

Application for Extension of Time and Summons Seeking Leave to Appeal From an Interlocutory Order Summarily Dismissing Proceedings / Court of Appeal Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted for filing a summons seeking leave to appeal from the order made on 13 May 2015.' "Whether leave to appeal should be granted from the summary dismissal of Ms Donnelly's proceedings on the ground that no reasonable cause of action was disclosed." 'Whether the primary judge applied an incorrect approach to setting aside a judgment allegedly procured by fraud.' 'Whether Ms Donnelly identified newly discovered material facts supporting the allegation that the judgment and orders of Stevenson J were procured by fraud.' 'Whether the default judgment against Mr Donnelly could support a challenge to the judgment and orders made against Ms Donnelly.']

Ratio Decidendi

Darke J did not require Ms Donnelly to prove due diligence and made no error in concluding that the summons disclosed no reasonable cause of action. Ms Donnelly knew at the time of the trial before Stevenson J the facts on which she later sought to allege fraud, including the differences between the facility letter signed on 12 June 2008 and the 10 June 2008 email attachment, so the fraud claim was not based on newly discovered material facts. The identity of ANZ Asia as lender and its separate status from the Bank were disclosed in the letter of offer. The default judgment point was not pursued by submissions and did not provide a basis for appeal. Leave would not be granted, and...

Court Disposition

Notice of motion filed 19 August 2015 seeking an extension of time and summons seeking leave to appeal both dismissed with costs.

Orders

  • ['Notice of motion filed 19 August 2015 seeking an extension of time dismissed with costs.' 'Summons seeking leave to appeal dismissed with costs.']