SMEDLEY v STATE BUILDING SOCIETY [1990] NSWCA 167

SMEDLEY v STATE BUILDING SOCIETY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and MAHONEY JA 11 July 1990, 17 October 1990 [1990] NSWCA 167

District Court — Mortgage — Equity — Practice and Procedure DISTRICT COURT — summary relief — striking out of defence — motion for — judge strikes out cross claim — party not present by reason of solicitor's mistake — whether appeal against order lies — whether relief in the nature of certiorari should be granted — held: (1) The orders made were in proceedings ancillary to an action and thus no appeal lies from them. Fraser Credits Pty Ltd vy Osterberg Olsen [1978] 1 NSWLR 121; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 applied; (2) Relief in the nature of the prerogative writ of certiorari lies to the District Court in respect of such orders. Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503; Keefe v Marks, (1989) 16 NSWLR 713; (3) However (per Gleeson CJ and Mahoney JA, Kirby P dissenting) the District Court judge had not been shown to be in error and the application for relief should be dismissed.

MORTGAGE — duty of mortgagee to mortgagor — mortgagee's sale — whether sale at an under value — whether action lies in equity and at common law. Pendlebury v Colonial Mutual Life Insurance Society Ltd (1912) 13 CLR 676; Latec Investments Pty Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265; Forsythe v Blundell (1973) 129 CLR 47 referred to. District Court Act 1973, s44, s46, s128, s134, s161(1)(1). Law Reform (Law and Equity) Act 1972, s6, s7. Supreme Court Act 1970, s69. Supreme Court Rules Pt15 R26. District Court Rules Pt9 R17; Pt11A R1.

Gleeson CJ The appellant, Mr Smedley, asks this Court to review a decision of his Honour Judge Sinclair, QC, in the District Court in April 1989. The nature of that decision, and its procedural background, will be outlined below. There has been lively debate in this Court as to the jurisdictional basis of any review of Judge Sinclair's decision. The appellant has appealed, but the State Building Society ("the respondent") denies the existence of a right of appeal (cf. Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86). Alternatively, the appellant seeks an order in the nature of certiorari. It is common ground that there is jurisdiction to make such an order, although some of the considerations relevant to such relief would raise problems for the appellant in addition to those relevant to a simple appeal (cf. Keefe v Marks (1989) 16 NSWLR 713). However, I am content to dispose of the matter upon the basis that Judge Sinclair has not been shown to be in error in any relevant respect.