COLLIER v SENGOS [1997] NSWCA 67

COLLIER v SENGOS SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRIESTLEY, POWELL and BEAZLEY JJA

3 June 1997, 25 June 1997

APPLICATION TO ADDUCE FRESH EVIDENCE — SERVICE OF ORIGINATING PROCESS — TRESPASS — CONVERSION — On appeal the appellants submitted: (1) by notice of motion: they should have leave to rely on fresh evidence; matters arising from proceedings Cl12247/96 should be included in the appeal; and, leave should be granted to amend the notice of appeal; (2) service of the originating process upon the first appellant had no effect as against the second appellant; (3) the trial judge erred in refusing to hear the appellants on certain issues; and, (4) the trial judge erred in refusing to award damages in respect of the appellants' claims in tort.

Held: (1) the orders sought by the appellants in their notice of motion should be refused; (2) in the present circumstances it was not open to the second appellant to rely upon the claimed non-service of the summons upon her;

(3) the grounds on which the appellants were not permitted to rely by the trial judge were grounds which, in any event, had no hope of success; and, (4) the appellants' claims in tort could at their highest sound in nominal damages only and the trial judge was entitled to make the orders that he did.

Priestley JA This appeal comes about in the following circumstances.

By mortgage dated 26 June 1992 the appellants, Mr and Mrs Collier, mortgaged the house in which they were then living, 44 Lerida Avenue, Camden, to Mr Sengos, the respondent. The mortgage was registered. Two subsequent variations of it were also registered.

The appellants became in default under the mortgage. They asked the respondent for an extension of time to repay what they owed under the mortgage so that they could themselves sell the house and pay the respondent from the proceeds.