Commonwealth Bank of Australia v Hadfield

(2001) 53 NSWLR 614; [2001] NSWCA 440

NSW Court of Appeal

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Interrogate

Catchwords

1. Courts
2. › District Court
3. › Jurisdiction
4. › Equitable jurisdiction
5. › Claim for account by mortgagor against mortgagee
6. › Whether proceeding for account falls within s 134(1)(h)
7. › District Court Act 1973 (NSW), s 134(1)(h)
1. Mortgage
2. › Power of sale
3. › Wrongful exercise
4. › Remedy available to mortgagor
5. › Whether proceeding for account is equitable claim for recovery of money
6. › Whether claim falls within s 134(1)(d) as relief against fraud
1. Practice and Procedure
2. › Amendment of pleadings
3. › Re-opening case after addresses commenced
4. › Exercise of discretion
5. › Whether trial judge erred in allowing re-opening and amendment
1. Practice and Procedure
2. › Prohibition
3. › Application under s 69 Supreme Court Act 1970 (NSW)
4. › Whether District Court exceeded jurisdiction
5. › Supreme Court Act 1970 (NSW), s 69

Quick Take

A mortgagor's claim for an account against a mortgagee for wrongful exercise of a power of sale is an 'equitable claim or demand for recovery of money' within s 134(1)(h) of the District Court Act 1973 (NSW) and may be brought in the District Court up to the $750,000 jurisdictional limit. Such a claim is not a claim for 'relief against fraud' within s 134(1)(d) where the allegations relate to disregard of the mortgagor's interests rather than corrupt or dishonest conduct. Whether a common law negligence action is available against a mortgagee for wrongful exercise of power of sale remains an open question.