PARTON AND ORS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [1992] NSWCA 181

PARTON AND ORS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and SHELLER JJA 29 September 1992

[1992] NSWCA 181

Mahoney JA It is appropriate that the court indicate the views which the members have formed as to the disposition of the present proceeding. For this purpose it will be convenient for me to refer shortly, and because of the generality of reference, perhaps somewhat inaccurately, to the present state of the proceeding.

The proceeding which was dealt with on 5 December 1991 by Mr Justice Giles resulted in the orders which appear on pages 2284 to 2286 of the appeal papers. Those orders involve the payment by Mr and Mrs Parton and the company, Parton Enterprises Pty Ltd, of the amount referred to in the judgment and there being granted the relief there referred to. The orders involve also the dismissal with costs of the proceedings brought by Mr and Mrs Parton and the company against the bank for relief in relation to the foreign currency loan which the bank arranged or gave in earlier years to the company.

The appeal which was brought against the judgment given by Giles J was initially, in form, an appeal by Mr and Mrs Parton and the company against the judgment itself.

Subsequently, for reasons which need not be canvassed, Mr Parton and the company have indicated that they do not propose to proceed with the appeal in relation to the substance of the matter, or at all, and they have submitted to the dismissal of the appeal with costs in relation to the matter on the merits and generally.

However, a separate course has been taken by Mrs Parton. It is not appropriate that I attempt to indicate the reasons for this or the details of it. But she has sought separately, by a Notice of Motion, to raise, as I shall describe it, the mental capacity issue. She has sought to raise, and I am conscious that in putting the matter in this way I may be putting the matter somewhat inaccurately, the contention that during the course of the proceedings, and in particular during the course of the trial of the proceedings, she was a person whose mental capacity was affected to the extent that either the judgment given was, as it was described in the Notice of Motion, null and void or one which should be set aside by reason of her mental capacity or incapacity at the relevant time.