Dimitri Investments Pty Ltd v Westpac Banking Corporation

[1990] FCA 281

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	No. G677 of 1989

)

GENERAL DIVISION 1

BETWEEN: DIMITRI INVESTMENTS PTY

LIMITED

RESTAURANT PROVEDORES PTY

LIMITED

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE :	17 MAY 1990

MINUTES OF ORDER

THE COURT ORDERS THAT:

or the Limitation Act 1969 (NSW).

1. There be a separate trial of so much of the matter as involves the question whether the claim made by Dimitri Investments Pty Limited is barred by the application of s.82 of the Trade Practices Act 1974

1. The parties consult in an endeavour to provide an agreed statement of facts in relation to that issue.

3.         The trial of that issue be stood over to a date to be fixed.

4.         Costs of the motion are to be costs in the proceeding between Dlmitri Investments and the respondent.

THE COURT GRANTS:

1.         Liberty to apply on two days' notice.

Note:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules. [See also Order 37
rule  2 ( 3 ) 1 .

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. G677 of 1989

1

GENERAL DIVISION )

BETWEEN: DIMITRI INVESTMENTS PTY

LIMITED

Applicant

RESTAURANT PROVEDORES PTY

LIMITED

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE :	17 WiY 1990

EXTEMPORE REASONS FOR JUDGMENT

This is a motion by the respondent seeking the

separate determination of an issue which arises in a claim

brought against it by two applicants Dimitri Investments Pty companies claims to have borrowed money through the respondent in overseas currency and thereby to have suffered loss.

Each claim is put both in negligence and pursuant to

s.52 of the Trade Practices Act 1974. It appears from an accepted in January 1983 and drawn down in February 1983. I was informed from the bar table that the loan was repaid in 1987, apparently at a loss because of the intervening deterioration in the exchange rate between the Australian dollar and the Swiss franc. There were also interest payments which had to be met in Swiss francs.
affidavit sworn by Miss Lynne Harman, the instructing

solicitor acting on behalf of the respondent, that the loan to

The second loan was offered in December 1984 to

Restaurant Provedores Pty Limited, a company which is
associated with Dimitri Investments through common directors.

The loan was accepted early in February 1985 and drawn down on

S February 1985.

The present litigation was commenced by the filing of

an Application and a Statement of Claim on 10 October 1989. advance to Dimitri Investments and more than three years,

although less than six years, after the advance to Restaurant
Provedores.

The respondent says that the claim made by Dimitri

Investments is statute barred, both in relation to the Trade
Practices Act claim, where the relevant period is three years,

and the negligence claim, where the relevant perrod is six
years. The respondent also says that the claim by Restaurant
Provedores, insofar as it depends on s.52 of the Trade

Practices Act is statute barred, although it concedes that the

negligence claim is within time.

The application made by the respondent is that the

Court should determine as a separate issue whether the clalm
made by Dimitri Investments, in either formulation, is statute
barred and whether the claim made by Restaurant Provedores,
rnsofar as it depends on s.52, is statute barred. Evidence
has been given by the affidavit of Miss Harman, indicating
that there would be some saving in preparation time if these

issues could be separately determrned.

I start with a general disinclination to order the

trral of separate issues. Experience teaches that
fragmentation of a case often leads to greater delay and
expense than might otherwise occur, mainly because of the

possibility of appeals against a determination on a

preliminary issue. Sometimes that preliminary issue does not,
in fact, resolve the claim.	There may be an expensrve trial,

and appeals, on that issue and it may turn out not to be

decisive.

However, in this case, it seems to me that, insofar

as the claim by Dimitri Investments is concerned, there is

much to be said for a separate trlal on the question whether the claims are statute barred. It is true, as Mr Kildea has pointed out, that, if the claim by Restaurant Provedores is to

relatron to the negligence claim even lf it turns out that the
s.52 claim is statute barred - the evidence may traverse
dealings whlch occurred in 1982 and 1983. Apparently, the
negotiations for that loan were conducted by the same people
as negotiated the Restaurant Provedores loan. The knowledge
of those people in 1982-1983 may well be important in
assessing their knowledge at the time of the later loan. be litigated - and I assume that it will be, at least in said in 1982 and 1983, even if the litigation is confined to the loan to Restaurant Provedores. Some documents which were brought into exzstence in 1982-1983 may also be relevant.

However, it is one thing to say that the evidence in

the second action may require reference to the earlier

material. It is another thing to say that there is no savlng

in time, in Court and in preparation, and, therefore, of

expense by eliminating as an issue the question of whether

necessity, the litigation of the earlier claim would require	there was the requisite knowledge in 1982-1983. Almost of
consideration of the information available to the bank at the time of the original offer. It is difficult to see that it is necessary to direct attention to this separate issue where, if the claim is confined to the later loan, knowledge at the time

of the later loan may have subsumed knowledge at the time of
the earlier loan.

I am influenced also by the fact that it seems to me

question sought to be raised, at least in relation to Dimitri

that it ought to be possible for a preliminary issue on the discussed with counsel the possibility of an agreed statement of facts, setting out, in chronological form and with supporting documents, the story of what happened in regard to the Dimitri Investments loan - in relation to the offer, the acceptance, the draw-down, payments of the various interest instalments and the eventual repayment; in each case, the relevant exchange rate being noted.

It seems to me that, on that material, the Court

parties; namely, whether the damage occurred at the time when	could readily resolve the issue of principle between the the date of accepting the offer of the respondent, or
alternatively on the draw-down date - or whether it occurred
when the applicant first had to pay more than expected, either by way of interest payments or in repayment of principal.

This question of legal principle can readily be

determined on the basis of an agreed statement of facts. I
see no reason to doubt that the parties can agree on the

necessary facts, putting in such material as either of them
thinks is material even though the other party may feel that
it would not be relevant in the ultimate determination of the
matter. If, contrary to my expectation, there is some issue
as to fact, this ought to be able to be covered by an
affidavit; subject, if necessary, to cross-examination. But I
do not see that this is very likely. Having regard to these
considerations, it seems to me that there is a case for a

separate determination of the question whether the claims made

by Dimitri Investments are statute barred.

If the

loan will disappear as an issue from the case and the events
of 1982 and 1983 need only be investigated to the extent that
they cast light upon the circumstances surrounding the loan to

respondent's contentions are accepted, the question of this suggested would save time and money.

In relation to the question whether there should be a

separate determination of the question whether the Trade
Practices Act claim of Restaurant Provedores is statute

barred, I am not persuaded that this would achieve any useful

result. It is true that it could be determined at the same
time as the consideration of the Dimitri Investments loan, and
possibly dealt with in the same way by an agreed statement of

facts. ~ u t it seems clear that this claim will proceed in any

event and I find it difficult to envisage that there would be
any additional evidence required to meet the s.52 claim or,

indeed, any discovery which would not equally apply to the
negligence claim.

In a practical sense, of course, it may be that the

determination of the Dimitri Investments claim will affect the
course taken in the Restaurant Provedores claim; particularly
if the view of the trial judge on the question when damages is
suffered is sustained on appeal. But I do not think that I

should order a separate trial of the Restaurant Provedores

case. That is a claim which, in any event, seems destined to

be fought out in any event.

Accordingly, the order I make is that there be a

separate trial of so much of the matter as involves the
question whether the claim made by Dimitri Investments pty

Limited is barred by the application of s.82 of the Trade

Practices Act 1974 or the Limitation Act 1969 (NSW). I direct

that the parties consult in an endeavour to provide an agreed

statement of facts in relation to that issue. I stand over

the trial of that issue to a date to be fixed. I grant

liberty to apply on two daysr notice. Costs of the motion are

to be costs in the proceeding between Dimitri Investments and
the respondent.

I certify the seven

preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Date:

APPEARANCES

Counsel for the Applicant:	Mr J F Kildea
Solicitors for the Applicant:	Anthony Hawkans & CO
Counsel for the Respondent:	MS R McColl
Solicitors for the Respondent:	Allen Allen h Hemsley
Date(s) of hearing:	17 May 1990