Eltran Pty Ltd v Westpac Banking Corporation

[1990] FCA 408

IN THE FEDERAL COURT OF AUSTRALIA	1	Qld G141 of 1986
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

, BETWEEN: ELTRAN PTY LIMITED

First Applicant

AND: PREMAYDENA PTY LIMITED

Second Applicant

AND: CRESWELL PLACE PTY LIMITED

Third Applicant

AND: ADAM'S ROW PTY LIMITED

Fourth Applicant

AND: CARTER LANE PTY LIMITED

Fifth Applicant

AND: BERNARD STREET PTY LIMITED

Sixth Applicant

AND: ORACA PTY LIMITED

Seventh Applicant

AND: BINON PTY LIMITED

Eighth Applicant

AND: TREVOR RONALD KING

Ninth Applicant

AND: WESTPAC BANKING CORPORATION

First Respondent

AND: JOHN GEOFFREY ALLPASS and

ALAN RAPHAEL TUTTLE

Second Respondent

statement of claim within 14 days.

14 AUG 1990

DATE OF ORDER:  23 JULY 199

FEDERAL COURT	OF
AUSTRALIA	PRINCIPAL

WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.        Proper particulars be given of the damages presently pleaded in paragraph 471 of the

Proper particulars of the allegation in para. l8( j) of the statement of claim, as required in the letter from the respondents' solicitors dated 18 June 1990, be supplied within 14 days.

If any further amendment is proposed to the applicants' pleadings, it must be notified in writing to the respondents' solicitors on or before 6 August 1990.

All other steps required to be taken under the orders previously made, including the filing of substitute affidavits, be completed by 13 August 1990.

All affidavits to be filed on behalf of the bank be filed and served by 24 September 1990.

The matter be set down for hearing on a date to be fixed by the New South Wales District Registrar.

The costs of both Notices of Motion including the costs of today be the costs of the respondents in the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA	)	Qld G141 of 1986
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN:  ELTRAN PTY LIMITED

First Applicant

AND :  PREMAYDENA PTY LIMITED

Second Applicant

AND :  CRESWELL PLACE PTY LIMITED

Third Applicant

AND:  ADAM'S ROW PTY LIMITED

Fourth Applicant

AND:  CARTER LANE PTY LIMITED

Fifth Applicant

AND :  BERNARD STREET PTY LIMITED

Sixth Applicant

AND:  ORACA PTY LIMITED

Seventh Applicant

AND :  BINON PTY LIMITED

Eighth Applicant

AND :  TREVOR RONALD KING

Ninth Applicant

AND :  WESTPAC BANKING CORPORATION

First Respondent

AND:	JOHN GEOFFREY ALLPASS and
ALAN RAPHAEL TUTTLE

Second Respondent

C O W :  PINCUS J.

PLACE: BRISBANE

m: 23 JULY 1990

EX TEMPORE REASONS FOR JUDGMENT

These two notices of motion were heard together. The first was filed on 25 June and the second on 3 July 1990. This is a suit concerning a large loan in foreign currency obtained from the first respondent bank. Although instituted in 1986, the case has proceeded through interlocutory stages rather slowly. There has been some difficulty in reducing the applicants' case to a precise and comprehensive form.

Subject to availability of a judge, the case is set down for hearing on 13 August next.

Pursuant to leave given, a further amended statement of claim was filed on 15 June 1990. Although the applicants' counsel when obtaining leave appeared to be under the impression that the new pleading might not change the substance of the case, in fact, it makes new allegations which are of significance.

Before coming to the details of these notices of
motion, I should mention that the core of the respondents'

case under them is that because of the applicants'

deleteriousness and disobedience of court orders, the	applicants' case should be stayed, and an injunction
previously granted to the applicants by the Full Court set aside. That injunction which restrains the sale of mortgaged property was granted in October 1988. It may well, as counsel for the respondents suggests, have been granted on the assumption that the case would be got to trial expeditiously.
That has not occurred, and there is now room for doubt whether it can be tried on 13 August next. However, it seems clear to me that I should neither stay the proceedings, nor set the injunction aside. A secondary contention on behalf of the respondents is that the applicants' pleadings are defective in some respects. That is so, and it is a matter of concern. Not all the points raised in the notices of motion need be dealt with. Some of them have become academic.

Those which require discussion are the following.

Notice of Motion of 25 June 1990

The first paragraph of the notice of motion attacks
the statement of claim, and the basis of this is principally
that the pleaded claim for damages under the Trade Practices

1974 is illogical and cannot succeed. That is so, but the applicants have advised that their claim for damages will be in accordance with the method set out in a particular affidavit which has been filed. As was conceded by counsel

and comprehension of it should not depend upon delving into	for the applicants, the pleading should be self-sufficient,
the evidence.
I will order that proper particulars be given of the damages presently pleaded in paragraph 471 of the statement of claim within fourteen days. Next it is said that paragraph
18(j) of the latter statement of claim is not properly
particularised. On 18 June 1990 the respondents' solicitors
wrote to complain about this, and it is admitted that no proper response was received. I will order that proper particulars of the allegation in paragraph 18(j) of the statement of claim, as required in the letter from the respondents' solicitors dated 18 June 1990, be supplied within fourteen days.
The next complaint made by paragraph 3 of the same notice of motion relates to lack of particularity in paragraphs 31, 32, 33, and 47 V1 of the statement of claim. That was apparently a clerical error and it does not seem that any order is now required. This part of the statement of claim sets out that the respondent bank was guilty of negligence in managing a loan facility. An affidavit has been filed made by a witness whose evidence is said to be relevant to this point, one Moser.
The respondents complain that Mr Moser's evidence appears to go beyond the pleading, and they require to know
whether it is intended to make still further amendments to the statement of claim. Counsel for the applicants says that no further relevant amendment is intended. Part of the affidavit
which is objected to says that contrary to sound banking practice the respondent bank had a risk management desk to protect its own position from 1986.
Associated allegations are made such as that the desk should have been abolished from a particular point of
time. None of this is pleaded. Counsel for the applicants who appeared at the hearing said that he is not engaged at the trial and he cannot undertake adequately to explain the relevance of these allegations. This morning Mr Einfeld Q.C., who is, I understand, engaged for the trial as senior counsel, has informed me that these paragraphs are not going to be relied on, and it will be necessary to make some order about that.
The sixth paragraph of the notice of motion complains that contrary to the court's order made at a directions hearing, the affidavit filed included accounts of conversations relied on in the pleading. The order was to the contrary. It is again necessary to state that the paragraph I had written concerning that need not be delivered now. I gather that Mr Einfeld Q.C. admits there was a breach of the order, and it may be necessary to make some order about that.
The seventh paragraph of the notice of motion relates to a question which counsel for the applicants says, and I accept, cannot properly be dealt with at this stage. Consideration of that paragraph has been adjourned. The eighth paragraph complains of failure for a reason which is not adequately explained to produce certain documents promptly. The letter was written on behalf of the respondents suggesting an intention not to comply with an order to produce those documents, but there is evidence that all relevant documents have now been produced, so it appears that no order is necessary.
Notice of Motion of 3 Julv 1990
This notice of motion makes complaint only of failure to file affidavits in time. Some history should be given. On 28 February 1990 an order for trial on affidavit, excepting certain affidavits referred to above, was made, and the applicants' affidavits were to be filed and served on 9 May, three months before the trial. That did not occur, and the order was varied in favour of the applicants by a further order of 25 May. That in turn was not complied with, and the respondents say they may in consequence have difficulty in being ready for trial in time.
An affidavit has been filed on behalf of the applicants explaining the circumstances attending these breaches of the court's orders, and while the explanation is in some respects unsatisfactory, I accept there was no element
of deliberation. I must say, however, that the fact that insufficient professional attention has been given to this
very large claim is only too obvious. It is a case which requires preparation by a qualified solicitor.
To return to the question of the injunction, it may very well be that the Full Court would not have enjoined the sale by the respondent bank if it had appreciated that the applicants' case would be handled in the fashion I have
described, and the matter would not be tried for about two years or perhaps more. During that period, the market for commercial property has, it is commonly thought, weakened somewhat, and it is possible that if the claim fails the bank's loss may not be fully recoverable. Yet, I can see no adequate justification for imposing on the applicants the suggested punishment, loss of the injunction, when the trial appears to be fairly close. Similar reasoning applies to the application for a stay. The orders will be as I have indicated.
I further order that if any further amendment is proposed to the applicantsr pleadings, the same must be notified in writing to the respondents' solicitors on or before 6 August; all other steps necessary under orders previously made, including the filing of substitute affidavits, must be completed by 13 August.
I order that all the affidavits to be filed on behalf of the bank be filed and served by 24 September.
I order that the matter be set down for hearing on a date to be fixed by the New South Wales District Registrar.
All the costs of both notices of motion, including the costs of today, will be the respondents' costs in the proceedings.

I certify that this and the

seven preceding pages are a true copy of the reasons for judgment herein of his Honour Mr Justice Pincus.