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789TEN v Westpac

789TEN v Westpac

Case [2004] NSWSC 594 28 July 2004

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CITATION: 789TEN v Westpac [2004] NSWSC 594

HEARING DATE(S): 15 June 2004, 15 July 2004

JUDGMENT DATE:
28 July 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [40] to [42] of judgment

CATCHWORDS: PRACTICE & PROCEDURE - abuse of process - where cross-defendants allege cross-claimant aware of information alleged as material facts in cross-claims only as result of privileged and confidential communications made for purposes of or in course of mediation - where mediation agreement contained confidentiality clause - analogy between without prejudice discussions and mediation - whether paragraphs should be struck out for abuse of process - whether conspiracy claim has no prospect of success - whether facts alleged in cross-claim show that cross-claimant has suffered damage - whether claim should be dismissed pursuant to Pt 15 r 26

LEGISLATION CITED: Supreme Court Rules

CASES CITED: AWA Limited v Daniels (Rolfe J, 5029 of 1991, 18/3/92, unrep)
AWA v Daniels (1992) 7 ACSR 463
Lukies v Ripley (No 2) (1994) 35 NSWLR 283
Williamson v Schmidt [1998] 2 Qd R 317
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409

PARTIES :
789TEN Pty Ltd (Plaintiff)
Westpac Banking Corporation (First Defendant)
Colin Alexander (Second Defendant)

FILE NUMBER(S): SC 50167/03

COUNSEL: M R Elliott (for 789TEN)
F M Douglas QC/P J Dowdy (for Westpac)
M D Broun QC/A Harper (Solicitor) (for Alexander)

SOLICITORS: Laurence & Laurence (for 789TEN)
Henry Davis York (for Westpac)
Turtons Lawyers (for Alexander)

789TEN PTY LTD v WESTPAC BANKING CORPORATION & ANOR

50167/03

INDEX – JUDGMENT 28 JULY 2004

Paragraph

Introduction 1

The nature of the application 4

The mediation 8

Analysis: abuse of process 12

Analysis: must the claim fail? 32

The first version of the cross-claim 32

Damages the gist of the action 33

Analysis 34

The amended cross-claim 39

The claim under Part 31 r 2 49

Conclusion and orders 50

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

28 July 2004

& ANOR

JUDGMENT

HIS HONOUR:

Introduction

1 By its amended summons filed on 27 February 2004, the plaintiff (“789TEN”) claims from the first and second defendants (“Westpac” and “Mr Alexander” respectively) an amount in excess of $9.9 million, together with interest, “expenses” and costs.

2 At all times material to the action, 789TEN conducted a bank account with Westpac. Mr Alexander, a director of 789TEN, was authorised, together with Messrs Kevin Carter and (the late) Dale Austin, also directors of 789TEN, to operate on that account. The authority given to them was that any one of them could operate up to $4,999, and any two could operate for $5,000 and above.

3 The plaintiff alleges that, between 19 November 1998 and 23 November 2001, Mr Alexander operated on the account in excess of his authority (and without the authority of either of his fellow directors), and that the Bank…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 789TEN v Westpac

Details

AGLC: 789TEN v Westpac [2004] NSWSC 594
Case: [2004] NSWSC 594
Decision Date: 28 July 2004

CaseChat Overview and Summary

The case involved a dispute between 789TEN and Westpac, with cross-defendants alleging that a cross-claimant became aware of information only due to privileged and confidential communications made during mediation. The mediation agreement contained a confidentiality clause, and the cross-defendants sought to strike out the paragraphs on the grounds of abuse of process. The court was required to decide whether the cross-claimant's knowledge of the information was due to the breach of the confidentiality clause, and whether the claim should be dismissed for lack of prospects of success.

The court held that the cross-defendants' argument that the cross-claimant's knowledge of the information was due to the breach of the confidentiality clause was incorrect, as it was not the confidentiality clause that caused the cross-claimant to know the information, but rather the confidential communications made during mediation. The court further held that there was an analogy between without prejudice discussions and mediation, and that the confidentiality clause was intended to protect the integrity of the mediation process. The court found that the cross-claimant's use of the information in the cross-claims did not constitute an abuse of process, as the information had already been disclosed in the mediation. The court also held that the conspiracy claim had no prospect of success, as the cross-claimant had not suffered any damage as a result of the alleged conspiracy.

The court further held that the cross-claimant had not shown that it had suffered any damage as a result of the alleged conspiracy. The court found that the cross-claimant had not provided any evidence to support its claim that it had suffered damage, and that the claim was therefore speculative. The court held that the cross-claim should be dismissed pursuant to Part 15 Rule 26 of the Federal Court Rules.

The court dismissed the cross-claims, and ordered that the cross-defendants pay the costs of the proceeding. The court held that the cross-claims were an abuse of process, as they were based on confidential information obtained during mediation, and that the cross-claimant had not shown that it had suffered any damage as a result of the alleged conspiracy. The court further held that the conspiracy claim had no prospect of success, and that the cross-claim should be dismissed.

Orders