Bride v The Australian Bank Ltd - [2000] WASC 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EDWARD JAMES BRIDE AND WENDY MARGARET BRIDE as Trustees of the PINWERNYING FAMILY TRUST -v- THE AUSTRALIAN BANK LTD & ORS [2000] WASC 310

CORAM: ACTING MASTER CHAPMAN

HEARD: 31 AUGUST, 1 SEPTEMBER & 17 OCTOBER 2000

DELIVERED : 18 DECEMBER 2000

FILE NO/S: CIV 1090 of 2000

BETWEEN: EDWARD JAMES BRIDE AND WENDY MARGARET BRIDE as Trustees of the PINWERNYING FAMILY TRUST
Plaintiffs
AND
THE AUSTRALIAN BANK LTD
THE COMMONWEALTH BANK OF AUSTRALIA
First Defendants
PEAT MARWICK MITCHELL
KPMG HUNGERFORDS
Second Defendants
DAVID JAMES YOUNG
CHARLES CANDLIN FEAR
Third Defendants

Catchwords:

Practice and procedure - Striking out statement of claim - Leave to further amend - Limitation period - Concealed fraud

Legislation:

Bankruptcy Act 1996 (Cth), s 180, s 183

Limitation Act 1995, s 27, s 38(1)(c)

Result:

Amended statement of claim struck out with no leave to replead
Judgment granted to the defendants with costs

Representation:

Counsel:

Plaintiffs:     In person
First Defendants           :     Ms C H Thompson
Second Defendants       :     Ms C H Thompson
First-named Third Defendant     :    No appearance
Second-named Third Defendant :    Ms C H Thompson

Solicitors:

Plaintiffs:     In person
First Defendants           :     Freehills
Second Defendants       :     Freehills
First-named Third Defendant     :    No appearance
Second-named Third Defendant :    Freehills

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

Ashmore v British Coal Corporation [1990] 2 QB 338
Bompas v King (1886) 33 Ch D 279
Bride & Anor v ABL & Ors, unreported; SCt of WA; Library No 950326; 23 June 1995
Bride & Anor v Australian Bank Ltd & Ors [2000] WASC 116
Bride & Anor v Peat Marwick Mitchell [1989] WAR 383
Bride v Australia Bank Ltd & Anor, unreported; FCA; No WAG 62 of 1987; 26 July 1988
Bride v Australia Bank Ltd & Ors [2000] WASC 116
Bride v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960965; 26 March 1996
Bride v Hammond Fitzgerald & King, unreported; SCt of WA; Library No 930303; 6 May 1993
Bride v KMG Hungerfords (1991) 109 FLR 256
Bride v KMG Hungerfords, unreported; FCt SCt of WA; Library No 940151; 8 March 1994
Chaplin v Young [1864] 33 BEAB 330
Craven v Smith (1869) LR 4 Ex 146
Hamilton v Kaljo (1989) 17 NSWLR 381
Honey v McLennan, unreported; SCt of WA; Library No 970574; 30 October 1997
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Macquarie Bank Ltd v Westgarth Middletons (1995) 8 ANZ Ins Cases 75,911
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Reichel v Magrath (1889) 14 App Cas 665
Williams v Price [1824] 1 SAM NST 581

Case(s) also cited:

Bride v Anglo-Australian Foods & Ors [2000] WASCA 124
Bride v Anglo-Australian Foods & Ors, unreported; SCt of WA; Library No 960621; 29 October 1996
Milne Feeds Pty Ltd v Bride & Anor (1993) 10 WAR 542
Milne Feeds Pty Ltd v Bride & Anor, unreported; FCt SCt of WA; Library No…

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.

Keep reading for free

Create a free CaseChat account to read Bride v The Australian Bank Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] WASC 310
Decision Date: 18 DECEMBER 2000

CaseChat Overview and Summary

The case of Bride v The Australian Bank Ltd involves a dispute between the plaintiff, Bride, and the defendant, The Australian Bank Ltd. The plaintiff is seeking to bring a claim against the bank for alleged fraudulent acts that occurred between August 1984 and February 1987. The plaintiff argues that the bank engaged in a concealed fraud and that the limitation period for bringing the claim should be extended due to the concealment. The case was heard in the Supreme Court of South Australia.

The primary legal issues in this case were whether the plaintiff's claim was an abuse of process and whether the limitation period for the claim had expired. The court had to determine whether the plaintiff had a legitimate right to have the claim litigated, or if it amounted to an abuse of process. Additionally, the court had to assess whether the limitation period for the claim had been exceeded, considering the plaintiff's argument that the fraud was concealed until a later date.

The court held that the plaintiff's claim was an abuse of process and that permitting the plaintiff to further amend the statement of claim would result in an abuse of the court process. The court found that the plaintiff had not demonstrated that the bank had engaged in any dishonest or wrongful conduct, and therefore, the claim did not meet the threshold for fraud. Furthermore, the court determined that the limitation period for the claim had expired as the writ was issued on 27 January 2000, well beyond the six-year period from the date of the alleged tort. The court rejected the plaintiff's argument that the limitation period should be extended due to the concealment of fraud, as there was no evidence that the bank or its agents had any knowledge or involvement in the alleged fraud.

The court dismissed the plaintiff's claim and denied leave for the plaintiff to further amend the statement of claim. The court's decision was based on the finding that the plaintiff's claim was an abuse of process, and the limitation period for the claim had expired. The plaintiff was not granted an opportunity to further amend the statement of claim, and the court upheld the bank's defence of limitation.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

A litigant only has a right to have his or her claim litigated provided it is not frivolous, vexatious or an abuse of the process. See Ashmore v British Coal Corporation [1990] 2 QB 338 at 348. It is an abuse of process to mount a collateral attack upon a final decision against a plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the plaintiff has had a full opportunity to contest a decision in the court by which it was made. It is not necessary to show that the plaintiff has any ulterior motive in bringing proceedings. To permit the plaintiffs a further opportunity to raise the issues they now seek to would, in my view, amount to an abuse of the process. The general limitation for claims in tort is six years from the date of the tort (see s 38(1)(c) of the Limitation Act 1935). In general the behaviour complained of by the plaintiffs in relation to fraud took place between August 1984 and February 1987. As the writ in this matter issued on 27 January 2000 it is apparent the six years has long since passed. The plaintiffs argue and attempt to plead that the circumstances of this case are such that a concealed fraud has occurred and thus the limitation period does not start to run until the fraud was first known or with reasonable diligence might have been found known or discovered (see s 27 of the Limitations Act 1935). There is a proviso to that section which limits rights in relation to land or rents against a bona fide purchaser for valuable consideration who has not assisted in the commission of such fraud and did not know or had no reason to believe a fraud had been committed. It is argued by the defendants that all of the land, with the exception of the winery land, has been purchased by a bona fide purchaser for valuable consideration and there is no suggestion that the purchasers knew or assisted in the fraud. During the course of argument Mr Bride continually referred to the notice of appointment of receivers and managers as being false and there was some disagreement between him and counsel for the defendants as to the precise words used in evidence in the bank proceedings. Even if the term "false" was used, that would not necessarily bring the circumstances of this case within the ambit of fraud. For fraud to exist there must be proof of some form of dishonesty or moral turpitude. (See Hamilton v Kaljo (1989) 17 NSWLR 381 at 386 ‑ 387.) There must be a consciousness that what is being done is wrong so that to take advantage of the relevant situation involved wrongdoing (see Honey v McLennan, unreported; SCt of WA; Library No 970574; 30 October 1997). Further, fraud must be specifically pleaded. As I understand the plaintiffs' pleaded case, fraud is alleged on two grounds: Firstly, the first defendant, together with the second and third defendants, purported to do acts as bankers, receivers and managers of Bride Foods Pty Ltd and Swans Stock Foods Pty Ltd, not as receivers and managers of the plaintiffs and/or trust assets. Secondly, the first‑named third defendant and one Anderson in collusion with the first defendant acted as receivers and managers and took possession of the plaintiffs' land by way of a false and fraudulent notice of appointment.