Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272 Hearing dates: 27 August 2015 Decision date: 10 September 2015 Before: Macfarlan JA at [1]; Ward JA at [8]; Leeming JA at [9] Decision: Appeal dismissed, with costs. Catchwords: BANKING AND FINANCIAL INSTITUTIONS – mortgagee exercised power of sale – borrower claimed mortgaged property sold at undervalue – amendment prior to trial removed allegations of sale at undervalue from cross-claim – borrower given repeated opportunities to provide valuation evidence – no evidence served – no error in refusing further amendment on ninth day of trial

PRACTICE AND PROCEDURE – defendant's solicitor applied for leave to cease to act on first day of trial – application unopposed – leave granted – trial proceeded with defendant unrepresented – whether error in failing to grant adjournment – where no adjournment sought – where borrower acting for himself had made repeated applications for adjournments previously – no error shown Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Contracts Review Act 1980 (NSW) Conveyancing Act 1919 (NSW), s 111A Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Neale v Ancher Mortlock & Woolley Pty Ltd [2014] NSWCA 7 Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315 Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 750 Sullivan v Department of Transport (1978) 20 ALR 323 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Category: Principal judgment Parties: James Woodward Neale (First Appellant) JW Neale Pty Ltd (Receivers and Managers Appointed) (Second Appellant) Commonwealth Bank of Australia (First Respondent) Brett Stephen Lord (Second Respondent) Stephen James Parbery (Third Respondent) Secured Global Opportunity Limited (Fourth Respondent) Representation: Counsel: H Altan (Appellants) P Dowdy, M Rose (Respondents)