DWYER v COMMONWEALTH BANK OF AUSTRALIA [No 2] [1995] NSWCA 137

DWYER v COMMONWEALTH BANK OF AUSTRALIA [No 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 16, 29 August 1995

[1995] NSWCA 137

On an appeal from the decision of Staff AJ of 18 October 1991, the Court as presently constituted on 30 June 1995 ordered that the matter be remitted to the Commercial Division for determination of a number of issues and that the appellants, Mr and Mrs Dwyer, pay one half of CBA's (the respondent's) costs of the appeal.

By notice of motion CBA applies to set aside the orders of the Court and substitute orders that the appeal be dismissed and the appellants pay CBA's costs of the appeal. Alternatively CBA applies to set aside order 2(iv) that the matter be remitted to the Commercial Division for determination of how the costs of the proceedings before Staff AJ and the further hearing in the Commercial Division should be borne and substitute the order of Staff AJ made on 18 October 1991 that the appellants pay the costs of the proceedings before him.

CBA attacked the proposition that in reliance upon the inference the Federal Court was prepared to draw in David Securities Pty Limited v The Commonwealth Bank of Australia (1990) 23 FCR 1 (since overruled by the High Court (1992) 175 CLR 353), the appellants did not lead evidence that they had paid the amounts on account of withholding tax under a mistake of fact. CBA submitted that as this proposition was not advanced to the Court and CBA had no opportunity to respond to it, it was patently wrong as a basis for a new trial; Pt 51 r 16 Supreme Court Rules referred to. CBA asked the Court to draw the inference that the appellants had decided to take their chances with the evidence and were not saying they wished to wait and see what the High Court had to say.

Held:

(1) It would be unfair to the appellants to deny them an opportunity, in light of the decision of the High Court to apply to lead further evidence on the matter. To that end, as this Court cannot decide the matter, the matter should be remitted to the Commercial Division which will need to be persuaded by the appellants that in all the circumstances they should be allowed to lead further evidence on this question.