Abriel v Australian Guarantee Corporation - [2001] FCA 165

FEDERAL COURT OF AUSTRALIA
Abriel v Australian Guarantee Corporation Ltd [2001] FCA 165
Trade Practices Act 1974 (Cth), s 51AA
Evidence Act 1995 (Cth), s 38
Stead v State Government Insurance Commission (1986) 161 CLR 141 applied
RUDOLPH ABRIEL, VERA ABRIEL and PREMIER KNITS PTY LIMITED v AUSTRALIAN GUARANTEE CORPORATION LIMITED and WESTPAC BANKING CORPORATION
NG 1018 OF 2000
HEEREY, SUNDBERG and MERKEL JJ
2 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1018 OF 2000

BETWEEN:

RUDOLPH ABRIEL
FIRST APPELLANT

VERA ABRIEL
SECOND APPELLANT

PREMIER KNITS PTY LIMITED (ACN 005 879 920)
THIRD APPELLANT

AND:

AUSTRALIAN GUARANTEE CORPORATION LIMITED (ACN 000 015 485)
FIRST RESPONDENT

WESTPAC BANKING CORPORATION (ARBN 007 457 141)
SECOND RESPONDENT

JUDGES:

HEEREY, SUNDBERG and MERKEL JJ

DATE OF ORDER:

2 MARCH 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The appellants pay the respondents’ costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1018 OF 2000

BETWEEN:

RUDOLPH ABRIEL
FIRST APPELLANT

VERA ABRIEL
SECOND APPELLANT

PREMIER KNITS PTY LIMITED (ACN 005 879 920)
THIRD APPELLANT

AND:

AUSTRALIAN GUARANTEE CORPORATION LIMITED (ACN 000 015 485)
FIRST RESPONDENT

WESTPAC BANKING CORPORATION (ARBN 007 457 141)
SECOND RESPONDENT

JUDGES:

HEEREY, SUNDBERG and MERKEL JJ

DATE:

2 MARCH 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BACKGROUND

The following account of the circumstances leading to the dispute determined by the primary judge and of the claims made by the appellants are taken largely from his Honour’s judgment. No exception was taken to his Honour’s account. The first and second appellants (“the Abriels” or “Mr and Mrs Abriel”) are married, and for present purposes can be treated as controlling Premier Knits Pty Limited (“the third appellant”. In the early 1990s companies associated with the Abriels, including the third appellant, obtained finance from one or other of the respondents in circumstances that led to a legal dispute. The dispute was purportedly resolved by a deed of release dated 5 April 1994. In 1995 the appellants commenced fresh proceedings (NG338/95) to have the deed of release set aside and for other relief incidental to the causes of action that had been compromised by it. Those proceedings were purportedly compromised by a deed of settlement dated 28 April 1998 (“the deed”). Pursuant to the deed judgment was to be entered on the amended statement of claim in proceeding NG338/95 in favour of the respondents. The application and cross‑claim were to be dismissed with no order as to costs. The proposed orders were made on 8 May 1998.
THE APPLICATION
In the application before the primary judge the appellants claimed an order setting aside the deed and the consent orders made pursuant thereto, a declaration that the deed was no bar to their prosecuting the claims pleaded in proceeding NG338/95 and damages. In substance the appellants’ case was that the respondents…

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.

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Details

Case: [2001] FCA 165
Decision Date: 2 MARCH 2001

CaseChat Overview and Summary

The case of Abriel v Australian Guarantee Corporation involves an appeal by the appellants, who argue for a new trial due to an alleged failure by the primary judge to allow cross-examination of Ms Bennett. The dispute pertains to the procedural fairness of the trial and the impact of the refusal to cross-examine Ms Bennett on the appellants' ability to present their case effectively. The matter was brought before the court to determine whether the refusal to allow cross-examination constituted a denial of natural justice that could affect the outcome of the trial.

The central legal issue before the court was whether the denial of the right to cross-examine Ms Bennett deprived the appellants of the possibility of a successful outcome. The court had to assess whether the primary judge’s refusal to allow cross-examination could have potentially altered the trial's result. Additionally, the court examined whether the appellants' claims of unconscionable conduct and undue influence could be substantiated by the evidence presented, particularly in light of the primary judge's findings regarding the conduct of the respondents.

In reviewing the submissions, the court noted that even assuming the primary judge erred in refusing cross-examination, such an error could not have produced a different result. The court found that the appellants' claims of unconscionable conduct and undue influence were ultimately dependent on the evidence of Mr Dowdy, Mr Opperman, and Mr Curd. Given the primary judge’s acceptance of their evidence and specific findings, the appellants' claims were precluded. The court concluded that the refusal to cross-examine Ms Bennett did not impact the trial's outcome and that the appellants' claims were inherently flawed based on the evidence presented.

In light of the above, the court dismissed the appeal and ordered that the appellants pay the respondents' costs of the appeal. The decision underscores the importance of procedural fairness while affirming that the appellants' claims did not meet the necessary evidentiary standards.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Based on the alleged failure of the primary judge to allow cross‑examination of Ms Bennett, the appellants seek a new trial “at least in so far as it deals with the cross‑examination of Ms Bennett”. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 Mason, Wilson, Brennan, Deane and Dawson JJ said:“… if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”For the purpose of dealing with the submission that there should be a new trial we will assume, contrary to our view, that the primary judge wrongly refused to allow Mr Abriel to cross‑examine Ms Bennett. In our opinion, had he permitted that cross‑examination, it could not possibly have produced a different result from that reached. In order to succeed on their unconscionability claim the appellants had to establish unconscionable conduct on the part of the respondents. This they could do only by reference to those in the respondents’ camp ‑ effectively Mr Dowdy, Mr Opperman and Mr Curd. The primary judge’s acceptance of the evidence of all three, and two unchallenged findings based on that evidence (see par 9), must spell the end of the appellants’ case. The first finding is that none of these people desired that Ms Bennett should cease representing the appellants. The second finding is that Mr Dowdy’s disclosure of the Grunstein letter to Ms Bennett was motivated solely by his desire to demonstrate to her the reasons for the respondents’ reluctance to pay money to the appellants in order to settle a claim the respondents considered to be without merit. The same findings spell the end of the alternative claim that the respondents knowingly assisted in creating the undue influence Ms Bennett was alleged to have exercised over the appellants, and that they knowingly assisted in her breach of her duty to give legal advice to the appellants free of any conflicting or potentially conflicting interest of her own without first disclosing that interest to the appellants.CONCLUSION The appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1018 OF 2000

JUDGES:	HEEREY, SUNDBERG and MERKEL JJ
DATE OF ORDER:	2 MARCH 2001
WHERE MADE:	SYDNEY

JUDGES:	HEEREY, SUNDBERG and MERKEL JJ
DATE:	2 MARCH 2001
PLACE:	SYDNEY