C H Magill & 1 Or v National Australia Bank Limited [2001] NSWCA 321

New South Wales Court of Appeal

CITATION : C H Magill & 1 Or v National Australia Bank Limited [2001] NSWCA 321 FILE NUMBER(S) : CA 40607/00 HEARING DATE(S) : 12/07/01, 13/07/01 JUDGMENT DATE : 17 September 2001

PARTIES : Colin Harold Magill & Deirdre Evelyn Magill v National Australia Bank Limited JUDGMENT OF : Meagher JA at 1; Heydon JA at 1; Ipp AJA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 11011/96 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : G K Burton (Appellants) J W Stevenson (Respondent) SOLICITORS : Leary & Company (Appellants) Mallesons Stephen Jaques (Respondent)

DECISION : (Further Orders); (1) Judgment for the appellants on the Statement of Claim (2) The orders made by Master Harrison in respect of the cross-claim are set aside and the cross-claim is remitted to her for determination in the light of the Court's findings (3) The respondent to pay the appellants their costs of the proceedings relating to the respondent's claim (4) The costs of the proceedings relating to the cross-claim are reserved for decision by Master Harrison (5) The exhibits tendered at the trial may be returned.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40607/00 SC 11011/96 MEAGHER JA HEYDON JA IPP AJA

Monday 17 September 2001 COLIN HAROLD MAGILL & DEIRDRE EVELYN MAGILL v NATIONAL AUSTRALIA BANK LIMITED JUDGMENT (NO 2) 1 THE COURT: Written submissions from both parties have been received in response to the orders made on 13 August 2001. 2 A material issue raised by the submissions concerns the treatment of deferred instalments. These are the instalments of $9,429.91 each that, initially, were due on 31 March 1983, 30 September 1983, 30 September 1986 and 31 March 1987. In aggregate, they amount to the sum of $37,719.64. 3 In paragraph 99 of the reasons for judgment of Ipp AJA, delivered on 13 August 2001, it was pointed out, firstly, that the respondent is not now entitled to claim payment of the deferred instalments and, secondly, that some act has to be performed by PIBA or the respondent before the deferred instalments can become payable prior to the expiry of the term of the PIBA loan. The respondent did not establish that the deferred instalments had become payable. 4 It follows that, failing the taking of appropriate steps to make the deferred instalments payable, they will become payable at the expiry of the term of the PIBA loan. In the meantime, the aggregate amount of those instalments remains owing by the appellants to the respondent. 5 The PIBA loan was drawn down on 15 January 1979. The term of the loan was 25.5 years. Accordingly, the term of the loan has not yet expired. 6 The appellants have shown that, without taking into account the aggregate of the deferred instalments, they have made a series of overpayments to the respondent in respect of the PIBA loan. That is to say, the appellants have paid more to the respondent in respect of their indebtedness under that loan than the amount which was due and owing by them to it. The total amount of the overpayments so made is $25,464.72. 7 It follows that the aggregate amount of the deferred instalments exceeds the aggregate amount of the appellants' overpayments. 8 The circumstances so set out constitute a set of facts not dealt with in the pleadings and not considered at the trial. Contentious issues arise, and not all were dealt with in the parties' written submissions delivered after 13 August 2001. Issues not dealt with concern whether the appellants have a claim for monies overpaid despite the fact that they remain indebted to the respondent in respect of the deferred instalments, and whether interest accrues on the overpayments despite the fact that the deferred instalments remain owing but are not payable. 9 The cross-claim brought by the appellants against the respondent does not deal with the questions that so arise. 10 As the issues in question have not properly been joined between the parties, and as the written submissions were silent in regard to them, it seems to us that they would best be dealt with if the appellants' cross-claim were to be remitted to Master Harrison to be dealt with afresh. The learned Master would be in a position to give directions for the pleadings to be amended so that the issues could be appropriately defined. By then the respondent may have done whatever is necessary to render the deferred instalments due and payable. Were this to occur then, without in any way attempting to influence the discretion vested in the Master, it would be open to her to allow amendments to the pleadings that would raise all the remaining issues between the parties and allow them to be disposed of. 11 As matters now stand we do not think that it would be appropriate for this Court to embark on an inquiry into matters that were neither pleaded nor properly argued. 12 The appellants are entitled to judgment in respect of the respondent's claim. This will have the effect that the respondent's asserted right to possession of Arapiles will fall away. 13 No order should be made in respect of the mortgage over Arapiles. Whether further orders will be made in that connection will depend on the decision of the Master. 14 In the circumstances, the further orders of the Court will be: