SMITH v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD and ORS [1997] NSWCA 289

SMITH v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA 24 November 1997

[1997] NSWCA 289

Meagher JA This is a notice of motion bought by Mr Thomas Edwin Curtis Smith in respect of litigation which he has brought against the Australian and New Zealand Banking Group Ltd and others.

The principle litigation was eventually decided by the Court of Appeal, and the bench consisted of Priestley, Sheller and Powell JJA, on 21 November 1996. I shall not set out the full orders of the court but I do set out O3(ii) and O6. They are as follows:

"3(ii) Thomas Edwin Curtis Smith has the benefit of ANZ's rights under the said Registered Charge in respect of the said amount of $1,325,000.00, and ANZ's remedies for enforcing payment thereof

"6. Liberty to any party to apply to a judge of the Court with respect to the quantification of the said moneys, costs, charges, expenses and interest."

Apparently pursuant to those passages of the Court of Appeal order, Mr Smith now brings a notice of motion in which he seeks a "declaration and/or order as to claims and amounts set out in a schedule here to fall within the terms of the said declarations 3(i) and 3(ii) and 06 ".

The schedule to the notice of motion consists of four paragraphs and is as follows:

"(a) ANZ Bank Guarantee fees totalling $87,229.06 charged to Thanyule Pty Ltd and Daly Smith (Management Services) Pty Ltd by ANZ in respect of the guarantees provided by ANZ for the third defendant.

"(b) Legal costs assessed on the solicitor/client basis incurred by the plaintiff in the following matters -

(i) ED 4058/94; Gi) ED 1913/95 (iii) CA 40392/95; HC S12 OR 1006;

"(c) Legal fees incurred by ANZ Bank in proceedings No 1913/95 and debited to YDSI Pty Ltd as a secured debt subject to Mortgage Debenture registered No 43368.