Merton v Bank of Queensland Ltd [2013] NSWCA 115

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Merton v Bank of Queensland Ltd [2013] NSWCA 115 Hearing dates: 29 April 2013 Decision date: 14 May 2013 Before: Barrett JA (at [1]); Gleeson JA (at [57]); Sackville AJA (at [58]) Decision: 1. The appellants' notice of motion seeking an order that further evidence be received on appeal is dismissed. 2. The appeal is dismissed. 3. The appellants are to pay the respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: BANKING AND FINANCE - instruments - development finance agreement - construction thereof - finance for acquisition, subdivision and development of land - where "construction funding" to be provided after confirmation of completion of subdivision - where such confirmation to be given within three months after "initial funding" - meaning of "initial funding" - whether "initial funding" provided upon making of first and only advance under the agreement - APPEAL - application for order that further evidence be received on appeal - whether special grounds shown. Cases Cited: Atkins v National Australia Bank Ltd (1994) 34 NSWLR 155 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Category: Principal judgment Parties: Matthew Merton - First Appellant Karen Butler - Second Appellant Bank of Queensland Ltd - Respondent Representation: First appellant in person Mr D R Sulan - Respondent First Appellant in person HWL Ebsworth Lawyers - Respondent File Number(s): 2012/284440 Decision under appeal Citation: Bank of Queensland Ltd v Heritage Village Estate Pty Ltd [2012] NSWSC 925 Date of Decision: 2012-08-08 00:00:00 Before: Stevenson J File Number(s): 2009/295047