Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272

Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272

The appeal was dismissed as no appellable error was shown; the primary judge did not err in refusing leave to amend pleadings to allege sale at undervalue due to the applicant's failure to produce admissible expert evidence, nor in permitting solicitor withdrawal and proceeding without adjournment, as the appellant was aware and did not request it.

Parties
First Appellant: James Woodward Neale; Second Appellant: JW Neale Pty Ltd (Receivers and Managers Appointed); First Respondent: Commonwealth Bank of Australia; Second Respondent: Brett Stephen Lord; Third Respondent: Stephen James Parbery; Fourth Respondent: Secured Global Opportunity Limited
Jurisdiction
Australia
Judgment Date
10 September 2015
Procedural Posture
Appeal / Post Trial
Outcome
Appeal dismissed, with costs.
Legal Topics
Mortgagee Power of Sale, Sale at Undervalue, Amendment of Pleadings, Adjournment, Representation at Trial
Banking and Financial Institutions Practice and Procedure Mortgagee Power of Sale Sale at Undervalue Amendment of Pleadings Adjournment Representation at Trial

Case Brief

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Parties

James Woodward Neale

First Appellant

JW Neale Pty Ltd (Receivers and Managers Appointed)

Second Appellant

Commonwealth Bank of Australia

First Respondent

Brett Stephen Lord

Second Respondent

Stephen James Parbery

Third Respondent

Secured Global Opportunity Limited

Fourth Respondent

Procedural Posture

Appeal / Post Trial

Legal Issues

  1. 1 Whether the mortgagee exercised the power of sale in breach of duty by selling mortgaged property at undervalue
  2. 2 Whether the refusal to permit amendment to plead sale at undervalue was erroneous
  3. 3 Whether there was error in permitting the defendant's solicitor to cease to act and proceeding to trial without an adjournment

Ratio Decidendi

The appeal was dismissed as no appellable error was shown; the primary judge did not err in refusing leave to amend pleadings to allege sale at undervalue due to the applicant's failure to produce admissible expert evidence, nor in permitting solicitor withdrawal and proceeding without adjournment, as the appellant was aware and did not request it.

Court Disposition

Appeal dismissed, with costs.

Orders

  • Appeal dismissed
  • Appellants to pay respondents' costs