ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402 Hearing dates: 4 August 2014 Decision date: 27 November 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Leeming JA at [3] Decision: 1. Appeal dismissed with costs.

2. Notice of motion filed 31 March 2014 dismissed with costs.

3. Grant leave to the fourth appellant Mr Jamal Charara to file and serve within 14 days of today a written submission and/or affidavit explaining how the appeal papers came to include material not before the primary judge. Catchwords: APPEAL - notice of discontinuance - notice filed by liquidator of two appellants, without notice to remaining appellants - whether consent of all "active parties" obtained - whether notice of discontinuance by some but not all appellants effective - notice held ineffective

COURTS - power to control proceedings - importance that appeal books reflect only the evidence admitted at first instance - material not before primary judge apparently added to appeal books by fourth appellant - fourth appellant not an Australian legal practitioner - fourth appellant given opportunity to provide explanation

MORTGAGES - default - exercise of power of sale - obligation to exercise reasonable care, not merely good faith - Corporations Act 2001 (Cth), s 420A - whether breach by advertising "mortgagee sale" - whether breach by misdescribing suburb - whether mortgagee obliged to wait for mortgagor to complete proposed sale - no breach established

PRACTICE - parties - where person joined as additional plaintiff by amendment - where joinder said to be in error - whether merely typographical error - person joined until such time as removed from proceedings