SCHEIBNER v NATIONAL AUSTRALIA BANK LIMITED [1994] NSWCA 279

SCHEIBNER v NATIONAL AUSTRALIA BANK LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and SHELLER JJA and GILES AJA 30 June 1994, 2 August 1994

[1994] NSWCA 279

MORTGAGES: Contracts Review Act 1980, no misleading or deceptive conduct.

APPEALS: adducing further evidence on appeal, credibility and relevance of evidence

The appellant mortgaged two parcels of land to the respondent Bank to secure moneys lent to her repayable on demand. The appellant defaulted in repayment under the mortgages. On the respondent's application Ireland J made orders for possession of the land. He rejected the appellant's defences based upon the Trade Practices Act 1974, the Fair Trading Act 1987 and the Contracts Review Act 1980. The appellant appealed from this judgment.

The appellant raised over twenty grounds of appeal which in substance went to questions of the admissibility and cogency of the evidence relied upon by the respondent, the non-calling of witnesses by the respondent and his Honour's conclusion that the appellant had not suffered any detriment by reason of not having had independent legal advice at the time she signed the mortgages. Ireland J found that the appellant was a highly intelligent woman who knew the documents she was signing were mortgages relating to the subject properties, that mortgages were a means of securing borrowings and thereby guaranteeing the borrower's obligation to repay capital and interest, that these particular mortgages secured the amount owing to the respondent at the relevant time and that if the lender were not repaid that lender would have the right of recourse to the property, to enter it, possess it and sell it. Further Ireland J rejected the appellant's contention that she did not consent to the interest rates charged.

Held:

That on the evidence and facts found by Ireland J none of the appellant's grounds of appeal was made out.