ANZ Banking Group Ltd v Tonkin - [2000] TASSC 7

[2000] TASSC 7

CITATION: ANZ Banking Group Ltd v Tonkin & Ors [2000] TASSC 7

PARTIES: AUSTRALIA AND NEW ZEALAND

BANKING GROUP LIMITED
v
TONKIN, Peter James
BURGESS, Ian Thomas
BURGESS, Elizabeth Anne
BUCHANAN, Donald Bruce
BUCHANAN, Judith Amy
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
v
EDDY, Craig Ashton
EDDY, Susan Mary

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 77/1999

FCA 78/1999

DELIVERED ON:  29 February 2000
DELIVERED AT:  Hobart
HEARING DATES:  8 November 1999
JUDGMENT OF:  Wright, Crawford and Slicer JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellants:  S P Estcourt QC
           Respondents:  S B McElwaine
Solicitors:
           Appellants:  Butler McIntyre & Butler
           Respondents:  S B McElwaine

Judgment Number: [1999] TASSC 7
Number of Paragraphs: 16

Serial No 7/2000
File No FCA 77/1999
FCA 78/1999

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED v
PETER JAMES TONKIN, IAN THOMAS BURGESS,
ELIZABETH ANNE BURGESS, DONALD BRUCE BUCHANAN,
JUDITH AMY BUCHANAN
AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED v
CRAIG ASHTON EDDY and SUSAN MARY EDDY

REASONS FOR JUDGMENT FULL COURT

WRIGHT J
CRAWFORD
SLICER J
29 February 2000

Orders of the Court

(FCA 77/1999)

Appeal allowed.

Order dated 6 September 1999 set aside and in lieu, defendants ordered to answer fully each part of interrogatories 3 and 5 administered by the plaintiffs on 22 June 1998.

(FCA 78/1999)

Appeal allowed.

Order dated 6 September 1999 set aside and in lieu, defendants ordered to answer fully each part of interrogatories 3 and 5 administered by the plaintiffs on 22 June 1998.
Serial No 7/2000
File No FCA 77/1999
FCA 78/1999

REASONS FOR JUDGMENT FULL COURT

WRIGHT J
29 February 2000

The appellants (ANZ) have brought two appeals in allied actions against orders dismissing appeals from the Master in respect of interrogatories.

In 1988, the defendants in each action gave guarantees to ANZ in respect of financial accommodation provided by ANZ to Tonkin Holdings Pty Ltd (Tonkin). Tonkin has become insolvent and ANZ has sued the guarantors. The guarantors have denied liability on the basis that ANZ negotiated and paid cheques drawn in disregard of limitations which applied to Tonkin's overdraft account, viz, that company cheques were only to be negotiated if bearing at least two authorised signatures. In fact, the cheques in question were signed by one authorised signatory only.

ANZ has responded to this defence by alleging that even if the cheques were signed and negotiated in this way:

(1)the defendants are estopped from denying ANZ's authority to pay the cheques because they knew that the cheques were signed by one person only;
(2) the defendants ratified any such unauthorised signing of the cheques;
(3)the cheques were applied in payment of legal liabilities incurred by Tonkin in the ordinary course of its business and thus, it would be…

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: [2000] TASSC 7
Decision Date: 29 February 2000

CaseChat Overview and Summary

ANZ Banking Group Ltd v Tonkin and others [2000] TASSC 7 involved appeals against orders dismissing appeals from the Master in respect of interrogatories. The case was heard by the Full Court of the Supreme Court of Tasmania. The appellant, ANZ Banking Group Ltd, had sued guarantors for sums owed by Tonkin Holdings Pty Ltd, which had become insolvent. The guarantors argued that ANZ had negotiated cheques in breach of the terms of the overdraft account, which required two authorised signatures. ANZ argued that the guarantors were estopped from denying authority to pay the cheques, that the guarantors had ratified any breach of the signing requirements, and that it would be unconscionable for the guarantors to retain the benefit of the payments. The Full Court allowed the appeals and set aside the orders of the Master and Underwood J, ordering the defendants to answer each part of interrogatories 3 and 5.

The legal issues before the court were whether the interrogatories were oppressive and unfair, and whether the defendants were required to provide detailed answers in relation to 89 cheques that they had identified as being outside the ordinary course of business. The court held that the interrogatories were not oppressive or unfair, and that the defendants were required to provide detailed answers in relation to the 89 cheques. The court found that the interrogatories were necessary to establish foundational facts required for ANZ's case at trial, and that the defendants had identified the cheques in question. The court held that the defendants were in the best position to provide the required information and that the interrogatories were not a substitute for further and better particulars, a notice to admit documents or a notice to admit facts.

Orders