RAHME and Anor v COMMONWEALTH BANK OF AUSTRALIA [1993] NSWCA 224

RAHME v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER and POWELL JJA 5 November 1993, 30 November 1993 [1993] NSWCA 224

MORTGAGE — GUARANTEES — SUMMONS FOR POSSESSION — LEAVE TO AMEND GROUNDS OF APPEAL

The appellants gave guarantees and a mortgage to secure the repayment of moneys borrowed from the respondent by DS Pty Ltd and A and TR Pty Ltd. DS Pty Ltd and A and TR Pty Ltd had failed in the Federal Court to have the guarantees and mortgage set aside but were ordered on the respondent's cross claim to pay to the respondent an amount claimed under the loan agreements and interest. An appeal by DS Pty Ltd and A and TR Pty Ltd to the High Court was upheld to the extent that the respondent's claim should be adjusted to allow for overpayments made by DS Pty Ltd and A. and TR Pty Ltd on account of withholding tax paid by the respondent but subject to its being established that the payments on account of withholding tax were made under a mistake of law. After the hearings at first instance and on appeal in the Federal Court but before the hearing on appeal to the High Court Studdert J made an order for possession of the mortgaged land in favour of the respondent. The appellants filed a notice of appeal and two supplementary notices of appeal against this order. When the appeal came on for hearing the appellants abandoned the grounds in these three notices of appeal and applied for leave to file two supplementary notices of appeal raising fresh grounds. In the first the appellants claimed that notices issued under s57 (2) (b) of the Real Property Act 1900 claimed a sum which was excessive because it failed to give credit to the right of the appellants as sureties to a set off for overpayments by the principal debtors to the respondent of sums referable to withholding tax and accordingly the notices were not valid. By the second the appellants claimed that in the course of correspondence up to the time of the hearing of the appeal the respondent had repudiated the guarantees and mortgage which the appellants had in consequence terminated.