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Equity Access Ltd v Westpac Banking Corporation

Equity Access Ltd v Westpac Banking Corporation

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Case Copied 8 August 1989 23 min read

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Re: EQUITY ACCESS LIMITED
And: WESTPAC BANKING CORPORATION; WESTPAC SAVINGS BANK LIMITED and CHALLENGE
BANK LIMITED
No. G257 of 1989
FED No. 520
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Practice and Procedure - application for security for costs following adjournment of part-heard hearing - matters relevant for consideration - chances of applicant's claim ultimately succeeding - degree of risk that respondents would not be reimbursed for costs if successful - whether costs order would prevent applicant from proceeding with claim - whether applicant's impecuniosity arose out of breaches alleged against respondents - principal proceedings brought under s.52 Trade Practices Act - whether costs order would be contrary to public interest in fair competition.

Companies Code (NSW) 1981: ss. 556, 533

Federal Court Act 1976: s. 56

Federal Court Rules: O. 28

Judiciary Act 1903: s.79

Trade Practices Act 1974: ss.52, 82.

HEARING

SYDNEY

#DATE 8:9:1989

Counsel and Solicitors Mr F G Lever instructed by
for Applicant: Messrs. Abbott Tout Russell

Kennedy

Counsel and Solicitors Mr J J Garnsey instructed by
for First Respondent: Messrs Allen Allen & Hemsley

Counsel and Solicitors Mr Webb instructed by Messrs
for Second Respondent: Mallesons Stephen Jaques

JUDGE1

Westpac Banking Corporation and Westpac Savings Bank Limited (which companies together are hereafter referred to as "Westpac") and Challenge Bank Limited ("Challenge") the first and second respondents respectively, move the Court for an order that the applicant, Equity Access Limited, provide security for their costs and an order that the applicant's claim be stayed until security is given.

The applicant commenced the present litigation by application filed in the Court on 16 May 1989. The statement of claim alleged that the applicant had, since about May 1988 been engaged in the development and marketing of a financial package under the name "Equity Access". This "package" was an arrangement for the acquisition of homes from persons who are paid the purchase price over a number of years and who retain the right to live in the home. The applicant further alleges that the words "equity access" have as a result of the applicant's activity in that time become associated with the business of the applicant and the financial package to which I have referred.
There is no dispute that both Westpac and Challenge have since on or around April 1989 each marketed a financial plan under the name "Equity Access" although the banks assert that the name "Equity Access" is always used in association with the names of the respective banks. These plans differ from the plan developed by the applicant in that each involves a loan being made to a customer of the bank on the security of a home, the funds to be used for some purpose such as investment. In this way the client's equity in his home is said to be accessed.
It is alleged that the use of the words "equity access" by the banks involves the making in…

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: [1989] FCA 520
Decision Date: 08 AUGUST 1989

CaseChat Overview and Summary

Equity Access Ltd initiated proceedings against Westpac Banking Corporation, contesting alleged breaches of trade practices. The dispute reached the court after an adjournment of a part-heard hearing, prompting Equity Access to apply for security for costs. The primary focus of the court was to determine whether the applicant's claim had a reasonable prospect of success, the risk to the respondents if they were not granted security for costs, and the potential impact of a costs order on the applicant's ability to proceed with their claim. Additionally, the court considered whether Equity Access's financial difficulties stemmed from the alleged breaches by Westpac.

The court assessed the likelihood of the applicant's success in the principal proceedings, which were brought under section 52 of the Trade Practices Act. It weighed the applicant's chances against the potential financial burden on the respondents should they be required to pay costs if they ultimately prevailed. The court also considered the broader implications of a costs order, particularly whether it would prevent Equity Access from pursuing their claim and whether the order would be contrary to the public interest in fair competition.

Upon evaluating these factors, the court concluded that Equity Access's claim did not have a reasonable prospect of success, and the risk to Westpac was significant. The court determined that a security for costs order would not unduly hinder Equity Access's ability to proceed with the claim. It further found that the applicant's financial difficulties did not arise from the alleged breaches but were instead due to other factors. Consequently, the court ruled against granting the security for costs, considering it would not be in the public interest to impose such an order in these circumstances.

Orders