Angel v National Australia Bank Ltd [2001] FCA 1053

FEDERAL COURT OF AUSTRALIA

Angel v National Australia Bank Ltd [2001] FCA 1053 PRACTICE AND PROCEDURE – motion by respondent to strike out applicants' claim as an abuse of process – applicants had mortgaged their property to respondent to secure a fixed loan – later applied for overdraft facility – overdraft facility granted and secured by up-stamping mortgage – mortgage was an "all moneys" security – applicants exceeded their overdraft limit almost immediately – respondent, after several warnings, called up the loans, including the moneys overdrawn – respondent, after serving notice demanding possession, sued applicants in Supreme Court of Western Australia for possession of the mortgaged property – applicants entered an appearance by their solicitors – respondent applied for summary judgment – one applicant swore affidavit to show cause that there was an issue or question in dispute which ought to be tried – specific allegation of unconscionable conduct raised in that affidavit – Master ordered judgment in favour of respondent for possession of mortgaged property – applicants did not appeal – six months later applicants sued respondent in Federal Court seeking damages and relief under the Trade Practices Act in respect of alleged misleading or deceptive conduct and unconscionable conduct including but extending beyond that relied upon by them in the Supreme Court proceedings, alternatively damages at common law for the respondent's alleged negligence – applicants sought interlocutory injunctive relief restraining respondent from exercising its rights under the mortgage – whether subject matter of proceedings res judicata – whether issue estoppel applied to bar the proceedings – whether the principle in Anshun should apply – interlocutory injunctive relief refused – application struck out as abuse of process. Jackson v Goldsmith (1950) 81 CLR 446 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied Blair v Curran (1939) 62 CLR 464 referred to Read v Brown (1888) 22 QBD 128 referred to Golski v Kirk (1987) 14 FCR 143 referred to Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 referred to Letang v Cooper [1965] 1 QB 232 referred to Bulurru Australia Pty Ltd v Oliver (2000) 49 IPR 384 applied Rogers v R (1994) 181 CLR 251 distinguished Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 referred to Carl Ziess Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 referred to Morlend Finance Corporation (Vic) Pty Ltd v Levine [1990] VR 193 referred to Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] applied Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 referred to JOHN JAMES STEWART ANGEL and GLENYSE JOY ANGEL v NATIONAL AUSTRALIA BANK LIMITED W 207 of 2001