Coddington v CBA [2008] NSWSC 1072

New South Wales Supreme Court

CITATION : Coddington v CBA [2008] NSWSC 1072

HEARING DATE(S) : 17 September 2008

JUDGMENT DATE : 17 September 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Application for separate decision of question refused.

CATCHWORDS : PROCEDURE [107] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Separate decision of questions - When appropriate.

CATEGORY : Procedural and other rulings

Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 CASES CITED : Islamic Association of Western Suburbs Inc v Dr H R K Survery [2007] NSWSC 1425 RSL Veterans' Retirement Village Limited v NSW Minister for Lands [2006] NSWSC 112 Tepko Pty Limited v Water Board (2001) 206 CLR 1

Margaret Edwina Coddington (P1) PARTIES : Robert Bruce Coddington (P2) Commonwealth Bank of Australia (D)

FILE NUMBER(S) : SC 4446/08

COUNSEL : In person (Ps) J Lanser and N J Owens, Solicitors (D)

SOLICITORS : Self represented (Ps) David Cohen, Solicitor (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 17 SEPTEMBER 2008

4446/06 MARGARET EDWINA CODDINGTON & ANOR v COMMONWEALTH BANK OF AUSTRALIA JUDGMENT 1 HIS HONOUR: This is an application for an order for the determination of a separate question in proceedings between the plaintiffs, a husband and wife, and the Commonwealth Bank of Australia. The suit is in part a suit to set aside orders in earlier proceedings as having been obtained by forgery and fraud. It is also a suit to set aside agreements between the plaintiffs and the defendant. 2 Mr Owens, of counsel for the defendant, in an earnest submission, has submitted that the questions as to the setting aside of orders, which would be a condition precedent to the plaintiffs' other claims being able to be maintained, are questions which, although they involve to some degree questions of fact, involve questions of fact that are quite separate from other questions of fact in the other proceedings. In relation to one of the bases of the claim to set aside orders, namely, fraud, as opposed to forgery, he goes further and suggests that it is entirely a question of law as to whether what is relied on as constituting a fraud could, in fact, have destroyed the plaintiffs' liability to the defendant. 3 The Bank has expressed, naturally enough, a particular distaste for going into the facts relevant to the subjacent transactions which go back many years, where the Bank may face difficulty in finding documents and in finding witnesses who are relevant to that matter. 4 The principal relevant statement of the law in this area is that, of Kirby and Callinan JJ in Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [168] - [170] where their Honours said: " [168] The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P (1999) Aust Torts Reports 81–525 at 66,317 [5] and Fitzgerald JA (1999) Aust Torts Reports 81–525 at 66,325 [37] were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd ( 1999) 198 CLR 180 attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.