Radin, Judith Anne v Commonwealth Bank of Australia [1998] FCA 59

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - motion to set aside judgment, or alternatively, application for extension of time to file notice of appeal, or application for leave to appeal against interlocutory order - exercise of appellate jurisdiction - motion seeks leave, inter alia, for the applicant to file amended defence to bank's cross-claim raising issue of merger of first and second mortgages in one entity as mortgagee - judgment obtained by mortgagee bank for possession of dwelling house and money judgment - entry of judgment and orders - power to set aside governed by Federal Court Rules, O 35 r 7(2) - whether orders "interlocutory" - orders resolved finally the issues between the parties on bank's second cross-claim - whether relevant that other issues remain in the proceeding - whether orders "reflect the intention of the Court" - relevance of concession made by applicant's solicitor on hearing of bank's cross-claim in ignorance of "merger point" - consideration of merits of "merger point" - effect of Bank Integration Act 1991 (Cth) on two mortgages over the dwelling house - whether doctrine of merger applies - futility of grant of leave to amend defence to Bank's cross-claim.

REAL PROPERTY - Merger - registered first and second mortgages - same entity becoming registered as mortgagee in both cases - not an instance of merger of interests.

Bank Integration Act 1991 (Cth), ss 12(1), 13(1), 24, 28(2)(c) Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Court Rules, O 35 r 7(2) Real Property Act 1900 (NSW), s 60 Brouwer v Titan Corporation Limited (1997) 73 FCR 241 (FCA/FC), applied Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 (FCA/FC), applied Heilbronn v Australian Securities Commission (unreported, FCA/FC, 4 November 1997), applied Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142, applied JUDITH ANNE RADIN v COMMONWEALTH BANK OF AUSTRALIA NG 985 of 1995