Smolle v Australia and New Zealand Banking Group Limited [2007] FCA 1673

FEDERAL COURT OF AUSTRALIA

Smolle v Australia and New Zealand Banking Group Limited [2007] FCA 1673

PRACTICE AND PROCEDURE — application by respondent bank to dismiss proceeding on basis that no reasonable cause of action disclosed — application by respondent solicitors to dismiss proceeding for want of prosecution — statement of claim inadequately particularised — applicants' affidavits difficult to comprehend — bank's reliance upon deed of release — whether deed of release provided complete defence to applicants' claim

Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997) discussed Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 discussed Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 applied London & South Western Railway Co v Blackmore (1870) LR 4 HL 610 referred to McCarthy v McIntyre [1999] FCA 784 discussed State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 cited Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581referred to HARALD SMOLLE AND ELKE SMOLLE v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, LEO JOHN REYNOLDS AND LINDA GROSS VID1622 OF 2005

WEINBERG J

7 NOVEMBER 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID1622 OF 2005

BETWEEN: HARALD SMOLLE

First Applicant

ELKE SMOLLE

Second Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

First Respondent

LEO JOHN REYNOLDS

Second Respondent

LINDA GROSS

Third Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 7 NOVEMBER 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application against the first respondent be dismissed. 2. The notice of motion filed on 30 July 2007 on behalf of the second and third respondents be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.