Sherwood v Commonwealth Bank of Australia (No 4) [2013] FCA 1147

FEDERAL COURT OF AUSTRALIA

Sherwood v Commonwealth Bank of Australia (No 4) [2013] FCA 1147 Citation: Sherwood v Commonwealth Bank of Australia (No 4) [2013] FCA 1147

Parties: LESLIE JAMES SHERWOOD, JULIANNE SHERWOOD, SEAN PATRICK JUDE MCARDLE and PAULA JOANNE MCARDLE v COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and COLONIAL FIRST STATE INVESTMENTS LTD ABN 98 002 348 352

File number: NSD 811 of 2010

Judge: REEVES J

Dates of judgment: 10 April 2013, 7 May 2013, 9 May 2013 and 17 July 2013

Catchwords: PRACTICE AND PROCEDURE – application for consent orders separating issues related to the respondents' cross-claim from the other issues in the proceeding – where no prejudice would result if all of the issues were heard in the one trial PRACTICE AND PROCEDURE – application to rely upon evidence from a new expert witness – where time for filing and serving expert evidence under trial programming orders expired – where expert evidence served on the twenty-second day of trial – whether prejudice to respondents could be cured with an adjournment and a costs order – whether applicants would suffer prejudice if leave to rely on the expert evidence was refused – consideration of matters identified in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 PRACTICE AND PROCEDURE – application for leave to amend the statement of claim – representative proceedings – where proposed amendments expand the period of an unconscionable conduct claim by eight years – where submissions on application concluded on the eleventh day of trial – consideration of matters identified in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 EVIDENCE – objection on the ground of relevance under s 55 of the Evidence Act 1995 (Cth) (the Evidence Act) – whether statements about an investor's subjective purpose for funds relevant to whether margin loans were "of a kind ordinarily acquired for personal, domestic or household use" under s 12BC of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) EVIDENCE – objection to transcript of examination tendered under s 77 of the ASIC Act – whether evidence not admissible in the proceedings because it was opinion evidence inadmissible under s 76 of the Evidence Act – whether some statements were statements of fact – whether statements fell into exception under s 78 of the Evidence Act – whether statements fell into exception under s 79 of the Evidence Act