Carnemolla v Adelaide Bank

[2013] NSWCA 122

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › Fresh evidence on appeal
3. › Special grounds
4. › Whether evidence could have been obtained with reasonable diligence
5. › Whether high degree of probability of different verdict
6. › Supreme Court Act 1970 (NSW), s 75A(8)
1. Appeal
2. › Appellate review of findings of fact
3. › Credit findings of trial judge
4. › Advantage of trial judge in seeing and hearing witnesses
5. › Whether findings inconsistent with incontrovertibly established facts or glaringly improbable
1. Mortgage
2. › Possession proceedings
3. › Default under mortgage
4. › Whether mortgage entered into as result of unconscionable conduct or fraud by broker
5. › Whether loan application contained false information
6. › Whether borrowers or broker responsible for false information
1. Evidence
2. › Rejection of evidence at trial
3. › Late tender of medical reports after evidence closed
4. › Whether trial judge erred in refusing to admit evidence
5. › Civil Procedure Act 2005 (NSW), s 56

Quick Take

The three-part test in Akins v National Australia Bank for 'special grounds' under s 75A(8) of the Supreme Court Act 1970 (NSW) is not exhaustive but is usually applied, and medical evidence pre-dating trial that was available but not tendered will not satisfy the first condition. An appellate court will not disturb a trial judge's credit findings unless the appellant demonstrates the findings are inconsistent with incontrovertibly established facts or glaringly improbable, and the trial judge's advantage in seeing and hearing witnesses must be given significant weight.