AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v COLLIER [1988] NSWCA 9

AUSTRALIA & NEW ZEALAND BANKING GROUP LTD v COLLIER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Kirpy P, Hope and CLARKE JJA 20 June 1988, 20 June 1988 [1988] NSWCA 9

TRADE PRACTICES — jurisdiction of Supreme Court — effect of s86 Trade Practices Act 1974 (Cth) — whether jurisdiction to consider alleged breaches of s52 and s68 of Trade Practices Act exclusive in Federal Court of Australia — decisions of Master and of Enderby J given after s86 amended — statement of claim relying inter alia on Trade Practices Act struck out as not disclosing a reasonable cause of action — appeal to Enderby J — purported further appeal to Court of Appeal — held: (1) Leave to appeal was required as judgment appealed from was interlocutory. Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 referred to; (2) Leave should be refused as no sufficient error had been shown to attract leave. Contracts Review Act 1980. Trade Practices Act 1974 (Cth) s52, s68, s86.

Kirby P The Court is of the opinion that this is not a matter appropriate for the giving of leave to appeal. Normally such decisions are unelaborated or given with only the briefest of reasons. However, as Mr Robert Collier is before the Court and is unrepresented, as his wife, the other claimant, is not present at Court today and as the decision affects the possession of their home, it is appropriate very briefly to explain why the Court has reached its conclusion.

The matter before the Court concerns, in substance, a dispute between Mr and Mrs Collier (the Colliers) and the Australian and New Zealand Banking Group Limited (the Bank) in relation to what began as an apparently normal extension of a loan to the Colliers by the Bank on the security of a mortgage over their home. The advance was in the sum, as it is agreed, of $80,000. There is no dispute that this sum was received by the Colliers. Upon it interest has accrued.