COMMONWEALTH BANK OF AUSTRALIA v HADFIELD [2004] NSWCA 350

New South Wales Court of Appeal

CITATION : COMMONWEALTH BANK OF AUSTRALIA v HADFIELD [2004] NSWCA 350 revised - 30/05/2005 HEARING DATE(S) : 20-24/09/2004 JUDGMENT DATE : 22 April 2005

JUDGMENT OF : Giles JA at 1; Tobias JA at 2; Bryson JA at 6; DECISION : Appeal allowed with costs: directions to settle mortgage accounts in accordance with decision on appeal.

CATCHWORDS : MORTGAGES - sale under power - remedies of mortgagor - mortgagor sued Bank in District Court to settle mortgage accounts and charge Bank with liabilities for alleged sale at undervalue and conversion of goods left on premises - District Court settled accounts charging Bank with liabilities as claimed - on appeal, held that in substance District Court had applied negligence test not good faith test - Bank had not converted goods left on premises by mortgagor and still there on completion of Bank's sale - on complex facts, consideration of Bank's supposed obligation to carry out mortgagor's subdivision project before sale, interaction of interests of mortgagor with Bank's pursuit of its own interest as mortgagee - large charges against Bank set aside and Court of Appeal to settle mortgage accounts without them. Conveyancing Act 1919 LEGISLATION CITED : Real Property Act 1900 Environmental Planning and Assessment Act 1979 Trade Practices Act 1974 ANZ Banking Group Ltd v. Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 Bourke v. Beneficial Finance Corporation Ltd [1991] ANZ ConvR 473 Commonwealth Bank of Australia v. Hadfield (2001) 53 NSWLR 614 Hallifax Property Corp. Pty Ltd v. GIFC Limited (1987) 4 BPR 9708 CASES CITED : Hawkesbury Valley Developments P/L v. Custom Credit Corporation Ltd (1995) NSW ConvR 55-731 Jiwira Pty Ltd v. Primary Industry Bank of Australia Ltd [2000] NSWSC 1094 Lacey v. Bank of New Zealand (NSWCA unreported 5 December 1997) Pendlebury v. Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 Silven Properties Ltd and another v. Royal Bank of Scotland plc and others [2004] 1 WLR 997 PARTIES : Commonwealth Bank of Australia - Appellant Dennis Ronald Hadfield - Respondent FILE NUMBER(S) : CA 40557/03 COUNSEL : R.G. Forster SC and A. Henskens - Appellant D.J. Higgs SC and F. Assaf - Respondent SOLICITORS : J.K. O'Sullivan (A) Jackson Smith (R)