DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 145

DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and SHELLER JA 12 August 1996

[1996] NSWCA 145

Priestley JA. This is a summons for leave to appeal against a decision of Mr Justice Rolfe, in which he dismissed on a summary basis, proceedings brought by the present claimants to have set aside a judgment of the Court on the ground of fraud.

Mr Justice Rolfe dealt in his reasons with the case asserted by the claimants in a very thorough way. In support of the application for leave in this Court, the statement of the nature of the case required by the rules sets out at length and very clearly the basis upon which leave is sought to appeal against what because of its summary nature was an interlocutory decision.

At the end of the statement, the questions involved are set out, of which there are three.

The first of these is a question which does not present any leave point unless one or other of the following two grounds for leave should succeed.

The first of these two grounds or questions sought to bring up an issue concerning what the claimants had to show in their proceeding to have the Court's judgment set aside on the ground of fraud. It was submitted that Mr Justice Rolfe had acted on a test of what the claimants had to show which was unfairly narrow and not justified by the nature of the proceedings. It was also submitted that the way in which he had dealt with this aspect of the case made it appropriate for this Court to consider statements in the judgment of Wentworth v Rogers that dealt with cases of this kind.

We do not think that a leave point is involved in what happened in the present case. In his reasons, Mr Justice Rolfe set out in a paragraph in the middle of page 17, which appears at page 118 of the application papers, what, in his opinion, the correct approach would be in the case of fraud so far as what was required of the parties asserting it in order to succeed. We do not think that there is anything exceptionable in the statement in that paragraph and we are also of the view that in the detailed discussion and reasons which followed, Mr Justice Rolfe adhered to what he had described in that paragraph as being the correct approach.