BOCHMAN v STATE BANK OF NEW SOUTH WALES [1995] NSWCA 51

BOCHMAN v STATE BANK OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA 9 December 1994, 15 March 1995

[1995] NSWCA 51

GUARANTEE — CONTRACTS REVIEW ACT — NO QUESTION OF PRINCIPLE

The respondent bank held a mortgage over the appellant's home by way of guarantee to secure the overdraft of a customer - the bank sued for possession - the defendant cross claimed raising various causes of action including the Contracts Review Act - the trial judge preferred the evidence of the then bank manager Mr Beh to that of the defendant and rejected the cross claims - the appellant challenged the judge's findings of fact in particular his decision to accept the evidence of Mr Beh in preference to that of the defendant - contemporary documentary evidence supported Mr Beh's evidence and was inconsistent with the appellant's claims - Held: No question of principle - appeal dismissed with costs.

Mahoney JA The appellant Mr Bochman owns land at Riverstone. He gave a mortgage to the respondent Bank to secure the guarantee given by him of the debt of a Mr Lam. Mr Lam did not pay the debt. The Bank accordingly has sought possession. Mr Bochman has sought to avoid liability under the guarantee and the mortgage on several grounds. At the trial Brownie J found for the Bank. Mr Bochman has appealed to this Court against his Honour's judgment.

It appears from the written submissions prepared for Mr Bochman and from what has been said by Mr Montgomery for him, that there are in the appeal three main issues: whether the mortgage was executed by Mr Bochman in proper form; whether he is entitled to relief under the Contracts Review Act or otherwise against the obligations undertaken by him; and whether the guarantee which the mortgage supported was discharged by what was done by Mr Lam and/or the Bank. The third ground was, it is accepted, not taken below, in the pleadings or the argument. Mr Montgomery, who was not counsel at the trial, sought to raise it before this Court. Having heard what was put in relation to it, the Court was of opinion that the point was not open to be argued on appeal. Had it been taken below, the evidence called at the trial might well have been different. In those circumstances, having heard what was said as to the substance of the ground of appeal, the Court concluded that advantage could not be taken of it before this Court.