SHEARS and ANOR v COMMONWEALTH BANK OF AUSTRALIA [1997] NSWCA 282

SHEARS and ANOR v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, POWELL and COLE JJA 4 November 1997, 4 November 1997

[1997] NSWCA 282 Contract — Offer and acceptance — Whether concluded agreement

Practice — Default Judgment — Application to set aside — Whether bona fide defence on merits — Relevance of delay

Powell JA This is an appeal, by leave granted on 25 August 1997, from a Judgment delivered, and Orders made, by Dowd J on 29 July 1997. On that day his Honour dismissed, with costs, the Appellants' application to have set aside a judgment which had been entered by the Respondent (to which I shall refer as "the Bank") on 10 August 1995 in proceedings in which the Bank had sought against the Appellants, relevantly, possession of a property known as 3 Burrawong Avenue Mosman, (to which I shall refer as "the Burrawong Avenue property") over which had it a registered first mortgage and, as well, a judgment in debt based on a personal covenants contained in that mortgage.

The mortgage upon which the Bank relied in order to support its claims was one of two securities - the other security being a third party mortgage over a property at Whiting Beach Road, Mosman (to which I shall refer as "the Whiting Beach Road property") which was owned by the mother of the Appellant, Alice Isobelle Gidley (to whom I shall refer to as "Miss Gidley') - which securities had been granted to the Bank to secure an advance by it to the Appellants, in May 1990, of a sum of approximately $2 million. That sum had been sought by the Appellants in April 1990 to enable them to refinance a debt of approximately $2 million owed by the Appellants to an organisation apparently known as "Mortgage Management", which debt was, at the time of the application to the Bank, at the time secured on the Burrawong Avenue property and the Whiting Beach Road property.