WILSON v ST GEORGE BANK LIMITED [1996] NSWCA 560

WILSON v ST GEORGE BANK LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA and ABADEE AJA 28 October 1996

[1996] NSWCA 560

APPEAL FROM SUMMARY JUDGMENT DISMISSED — NO ARGUABLE CAUSE OF ACTION DISCLOSED IN STATEMENT OF CLAIM

Clarke JA. Mr John Wilson has filed a notice of appeal from a decision by Hamilton AJ on 30 September 1996 in which the learned judge dismissed an appeal brought by Mr Wilson from a judgment of Master Greenwood given on 17 September 1996.

In the course of preparation for the hearing both parties seem to have directed their mind to the need to secure the leave of this court to bring the appeal. Quite unusually, St George Bank Limited, the opponent, has not sought, as I understand it, to strike out the appeal but in a gesture helpful to Mr Wilson has invited the Court to consider an assumed application by Mr Wilson for leave to appeal and to dismiss it.

The factual background is that Mr Wilson filed a statement of claim in the Supreme Court seeking a declaration that a loan account that he has with the Bank is void; or, alternatively, the severance of part of what is described as a contract.

Without going into the detail of the statement of claim, my understanding is that Mr Wilson complains that a mortgage which he entered into with the StGeorge Bank is void, or partly void because in one respect it is uncertain in its terms.

The mortgage provides for the payment of a fixed rate of interest for the first five years of its term and for the following two years makes the following provision (I am not quoting from the mortgage but the effect of the mortgage).

On the fifth anniversary of the first advance of your loan the above fixed interest rate will cease. At that time the following interest rate options will be available: (a) A further interest rate period at the rate applicable for St George's fixed rate residential loans at that time; or (b) St George's variable residential loan interest rate applicable at that time.