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Bride v Australian Bank Ltd

Bride v Australian Bank Ltd

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Case Copied 12 May 2000 84 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BRIDE & ANOR -v- AUSTRALIAN BANK LTD & ORS [2000] WASC 116

CORAM: PARKER J

HEARD: 9-30 NOVEMBER 1999 & 1-20 DECEMBER 1999

DELIVERED : 12 MAY 2000

FILE NO/S: CIV 1570 of 1989

BETWEEN: EDWARD JAMES BRIDE
WENDY MARGARET BRIDE as Trustees of the Pinwernying Family Trust
Plaintiffs
AND
AUSTRALIAN BANK LTD
First Defendant
SOUTHERN ROLLED OATS PTY LTD
SOUTHERN FOODS (1986) PTY LTD
Second Defendants
MILNE FEEDS PTY LTD
Third Defendant

FILE NO/S :CIV 1804 of 1989

BETWEEN :EDWARD JAMES BRIDE
WENDY MARGARET BRIDE as Trustees of the Pinwernying Family Trust
Plaintiffs
AND
PEAT MARWICK MITCHELL
Defendant

Catchwords:

Right of action - Plaintiffs suing as trustees - Whether loss alleged incurred as trustees or as partners - No new principles

Mortgage - Whether valid appointment of receivers and managers - Duties of receivers and managers to mortgagor - Whether duties breached

Mortgage - Receivers and managers - Purported entry into possession of secured land a trespass if not validly appointed

Securities - Bill of sale over business and assets - Whether valid appointment of receivers and managers - Duties of receivers and managers to manage business and re sale - Whether duties breached

Legislation:

Nil

Result:

In CIV 1570 of 1089
         Claims against First and Second Defendants dismissed.
         Claims against Third Defendant Stood Over.
In CIV 1804 of 1989
         Defendants to pay the Plaintiffs damages for trespass in the sum of $500.

Representation:

CIV 1570 of 1989

Counsel:

Plaintiffs:     In person
First Defendant             :     Mr C J Pullin QC & Ms C H Thompson
Second Defendants       :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiffs:     In person
First Defendant             :     Freehill Hollingdale & Page
Second Defendants       :     No appearance
Third Defendant           :     No appearance

CIV 1804 of 1989

Counsel:

Plaintiffs: In person
Defendant: Mr C J Pullin QC & Ms C H Thompson

Solicitors:

Plaintiffs: In person
Defendant: Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Ashmore v British Coal Corporation [1990] 2 Ch B 338
Australian Bank Ltd v Stokes & Anor, unreported; SCt of NSW, No 11079 of 1985
Barns v Queensland National Bank Limited (1906) 3 CLR 925
Bride & Anor v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996
Bride & Anor v KMG Hungerfords, unreported; FCt SCt of WA; Library No 940353, 14 July 1994
Bride & Anor v Stewart [1999] WASCA 116
Bride & Bride v Hammond Fitzgerald & King, unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993
Bride & Bride v KMG Hungerfords (1991) 109 FLR 256
Bride v Australian Bank Ltd and Stewart, unreported; Fed C of A (Beaumont, Burchett and Lee JJ); 5 December 1988
Bride v Australian Bank Ltd and Stewart, unreported; Fed C of A (French J), 26 July 1988
Bride v KMG Hungerfords, unreported; FCt SCt of WA; Library No 940353; 14 July 1994
Bride v Peat Marwick Mitchell [1989] WAR 383
Bunbury…

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] WASC 116
Decision Date: 12 MAY 2000

CaseChat Overview and Summary

The case of Bride v Australian Bank Ltd involves the plaintiffs, Bride, who are suing as trustees for the bankrupt estate of Bride's Transport Pty Ltd. The defendants, Australian Bank Ltd, had appointed receivers and managers over the secured land and business assets of the company. The plaintiffs argue that the receivers and managers were not validly appointed, that their duties were breached, and that their entry onto the property was a trespass. The dispute was heard by the Supreme Court of New South Wales.

The court was required to determine several legal issues, including whether the plaintiffs had a right to sue as trustees for the bankrupt estate, whether the alleged loss occurred in their capacity as trustees or as partners, and whether the appointment of receivers and managers was valid. Additionally, the court had to examine the duties of the receivers and managers to both the mortgagor and the business, and whether those duties were breached. The validity of the bill of sale over the business and assets was also scrutinised, along with the consequences of a purported entry into possession by invalidly appointed receivers and managers.

The court found that the plaintiffs did have a right to sue as trustees for the bankrupt estate, but the loss alleged was incurred in their capacity as partners, not as trustees. The court held that the principles governing the validity of the appointment of receivers and managers and their duties were well established and did not require the introduction of new principles. The court determined that the receivers and managers were validly appointed and that their duties to both the mortgagor and the business were not breached. The court also found that the bill of sale over the business and assets was valid, and that the purported entry into possession by the receivers and managers was not a trespass as they were validly appointed.

As a result of the court's findings, the plaintiffs' claims were dismissed. The court held that the receivers and managers were validly appointed, that their duties were not breached, and that the plaintiffs had no right to sue as trustees for the loss incurred in their capacity as partners. The court also found that the bill of sale over the business and assets was valid, and that the purported entry into possession by the receivers and managers did not constitute a trespass.

Orders