DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 144

DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 31 May 1996

[1996] NSWCA 144

Cole JA. This matter has been placed in the list for directions at 3 pm on Friday, preceding the Tuesday in which the matter is listed for hearing. The matter has been given expedition and, as I understand it, the appellants presently have the benefit of a stay of various orders made by Giles J.

The matter has been before this court on at least two recent occasions and a number of matters have emerged. The first is that there was filed an application to admit new evidence. Submissions, which have been filed on behalf of the appellants, recognise that the new evidence may be required if it is decided to proceed with the contention that the judgment given by Giles J may have been obtained by fraud, in the sense that it was dependent upon acceptance of evidence given by a witness which is said to be in some form tainted. To establish that taint, this new evidence is said to be required.

When the matter was before the court previously, the question of whether that was the appropriate course or whether a more appropriate course was to commence new proceedings in the Commercial Division seeking to have the judgment set aside, as was the course determined by this court as being appropriate in Spies v Commonwealth Bank of Australia'.

Counsel for the appellants has indicated to the court this afternoon that the application to admit new evidence in the current appeal will not be pressed. The appellants propose to commence new proceedings in the Commercial Division today to seek to have the judgment previously entered set aside in accordance with concepts referred to in Spies.

The second matter that emerged before the court when previously mentioned, was that subpoenas had been issued by the appellant directed to a witness in the prior proceedings and, indeed, the opponent, requiring the production of various documents. These documents are said to assist the appellants in relation to the allegation of fraud, concerning the judgment, which they wish to bring.