Donnelly v ANZ [2015] NSWCA 341

The wife argued that the lower court’s judgment in favour of the bank granting the bank possession was procured by fraud, based upon newly discovered material facts. The alleged fraud was that the borrower was not aware that the facility letter was different to the offer letter by reason of a disclaimer in the facility letter that the lender was separate to ANZ and not regulated by Australian laws, because the facility and offer letter were represented as being the same.

The court found that the borrower was attempting to take facts alleged at the primary hearing to constitute unconscionable conduct and to recast them as amounting to fraud and this was impermissible. The court noted that the borrower was aware of the differences between the facility and the offer at the time of trial and that in any case, the differences were immaterial because it was disclosed in the letter of offer that the lender was not an Australian bank and that the governing law was not Australian law.

The court said:

The finding that [the borrower] knew the asserted facts at the time of the proceedings before Stevenson J was sufficient to conclude that the proceedings to set aside the judgment as procured by fraud were doomed to failure.

The court dismissed the case.

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