TUGVALE PTY LIMITED v COMMONWEALTH BANK OF AUSTRALIA [1993] NSWCA 274

TUGVALE PTY LIMITED vy COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, MAHONEY JA and CLARKE JA 13 December 1993

[1993] NSWCA 274

MORTGAGES — failure to insure — consequences of — absence of any relevant loss — whether default sustains exercise by mortgagee bank of statutory power of sale — complaint not argued at trial — summons for leave to appeal — offer to tender evidence which would have been available at the trial — held: (1) The "fresh evidence", having been available at the trial, would not be admitted in the application; (2) The point of law not argued at the trial concerning the loss, if any, suffered by the mortgagor would not be sustained because (a) if it was raised at the trial it would have opened up issues which the mortgagee was entitled to contest; and (b) it was contrary to the authority of the Court in Morrisey v Bright [1978] 2 NSWLR 1 (CA); (3) Summons for leave dismissed with costs.

LEGAL PRACTITIONERS — possible misconduct — failure to prosecute claim with diligence — receipt by counsel of his brief in summons for leave to appeal only 20 minutes before hearing commenced — held: (per Kirby P): The transcript should be referred to the Law Society of New South Wales for investigation of the circumstances relevant to the interests of the claimant and the reputation of the legal profession — reference without pre-judgment of any misconduct.

Kirby P. Before the Court is a summons for leave to appeal. The matter has already been considered by Master Malpass, who entered summary judgment. An appeal to James J failed. Application is now made for leave to appeal to this Court from the determination of James J.

There are two other proceedings before us. The first is an application for an extension of the time for a claim to be made out of time. The other is for a stay of execution of the order of James J. The stay is the immediate problem. Arguments have been advanced that the claimant should have leave so that it can contest the basis upon which, ultimately, the summary judgment was entered by the Master and upheld by James J — viz the failure of the claimant to insure the property in accordance with a clause in its mortgage.