SCHNEIDER and ANOR v NATIONAL AUSTRALIA BANK LTD [1995] NSWCA 419

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

MEAGHER,SHELLER and POWELL JJA 29 May 1995, 10 August 1995

[1995] NSWCA 419 PROCEDURAL FAIRNESS — amendment of summons — legal representation

By two summonses, against the respondents, Barry James Schneider and Jennifer Beatrice Schneider, filed on 22 January 1990, the appellant, National Australia Bank (NAB) claimed judgments for possession of certain lands and leave to issue writs of possession to enforce ie judgments. The respondents filed a cross claim claiming damages

* for breaches of a lease agreement whereby they alleged NAB agreed to lease a prime mover to the Schneiders and to advance an amount of $133,000 to them;

* for contravention of the Trade Practice Act 1974; and

* for negligent misrepresentation.

On 28 November both proceedings came for hearing before Windeyer J. An application for adjournment made by the Schneiders and opposed by NAB was refused. Thereafter Mr Schneider refused to take part in the proceedings.

An application was made by the appellant to amend the summonses to include a monetary claim. Windeyer J permitted NAB to amend its summonses but the monetary claims were adjourned. NAB, by its own delay, had created a situation in which it was not permitted to complete its case on the date fixed for hearing.

The appellants challenged the decision of Windeyer J on the basis that there was a denial of procedural fairness involving:

1. the refusal of his Honour of an adjournment of the hearing of the proceedings and the cross claim;

2. the granting of leave to amend the proceedings so as to enable the respondent bank in each proceeding to seek a judgment for debt; and

3. the dismissal of the cross claim.

Held:

(per Meagher and Powell JJA)

Once it is accepted that the refusal of an adjournment was appropriate and Mr Schneider on behalf of his wife and himself elected to take no part in the proceedings it was inevitable that the bank would obtain an order for possession and the cross claim would be dismissed leaving the bank free to seek to obtain judgment for the debts owing under the mortgages.