| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6818 of 1998
| ROBERT FIDGEON and PATRICE FIDGEON | Plaintiffs |
| v | |
| WESTPAC BANKING CORPORATION (ACN 007 457 141) and DARRER MUIR FLEITER | Defendants |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 12, 13, 14, 15, 19, 20, 21, 22, 26, 27 29 November, | |
DATE OF JUDGMENT: | 27 March 2002 | |
CASE MAY BE CITED AS: | Fidgeon v Westpac Bank | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 85 | |
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Banks and banking – duty to customer – building project – whether duty to supervise the finances of project – whether draw downs properly made – whether authorised by customer.
Legal practitioner’s duty to client – whether breach of duty.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs (7 to 22 November) | Mr T.J. McLean | The Law Offices of Barry Fried |
| The plaintiffs appeared in person after 22 November 2001 | ||
| For the Firstnamed Defendant | Mr R.D. Strong | Mallesons Stephen Jaques |
| For the Secondnamed Defendant | Mr N. Murdoch | Middletons Moore & Bevins |
TABLE OF CONTENTS
The Facts.............................................................................................................................................. 4
Events to 9 February 1995............................................................................................................ 7
Events from 9 February 1995 to 29 September 1995.............................................................. 21
Events after 29 September 1995................................................................................................. 35
Funding Problems.................................................................................................................... 39
Open Space Levy...................................................................................................................... 41
Housing Guarantee.................................................................................................................. 43
Sale of 5/47 Cairnes Crescent.................................................................................................. 49
The Fidgeons pursue the Builder............................................................................................. 56
The Fidgeons’ Contentions Against the Bank............................................................................ 57
Breaches of Contract................................................................................................................... 59
Breaches of Duty of Care............................................................................................................ 61
Improper Payments from the Business Loan Account.......................................................... 61
The Fidgeons’ Authorities to Pay............................................................................................. 62
Failing to Inform the Fidgeons.................................................................................................. 62
The Bank’s Counterclaim............................................................................................................... 63
The Fidgeons’ Contentions Against the Solicitors.................................................................... 64
Registration of the Builder......................................................................................................... 64
Terms of the Building Contract................................................................................................. 66
Terms of the Bank Loan............................................................................................................. 66
Plan of Subdivision..................................................................................................................... 67
Open Space Levy......................................................................................................................... 67
Sale of 5/47 Cairnes Crescent.................................................................................................... 69
Trust Account Matters................................................................................................................ 69
Conclusion......................................................................................................................................... 71
HIS HONOUR:
The land at 2019 Malvern Road, Malvern has been in the Fidgeon family since the 1920s. Until 1995 it comprised a block of land with a frontage of about 50 feet to Malvern Road running in a north-easterly direction nearly 400 feet to the railway reserve. This land is more particularly described in Certificate of Title Volume 5909 Folio 776. A house had many years ago been constructed on this land close to Malvern Road, leaving a large area of land at the rear. Adjoining this land at the rear and on its westerly side is another piece of land which ran south-west from the railway line for about 140 feet. This adjoining property which is accessible from a cul-de-sac, Cairnes Crescent, is known as 45 Cairnes Crescent and is the land described in Certificate of Title Volume 6349 Folio 619. It, too, has a house erected on it.
In 1989 the owners of 2019 Malvern Road, the plaintiffs, Robert George Fidgeon and his wife, Patrice Ann Fidgeon, had in mind…
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- [2002] VSC 85
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CaseChat Overview and Summary
The legal issues that the court was required to decide included whether the bank had a duty to supervise the finances of the building project, whether the draw downs from the loan account were properly made, and whether these draw downs were authorised by Fidgeon. The court had to examine the terms of the loan agreement between the parties and assess the conduct of both the bank and Fidgeon in light of these terms.
The court found that the bank did not have a duty to supervise the finances of the building project. The court held that the bank had fulfilled its obligations under the loan agreement by making the draw downs in accordance with the terms of the agreement. The court also found that the draw downs were properly made and that there was evidence to suggest that they were authorised by Fidgeon. The court concluded that there was no breach of duty on the part of either the bank or Fidgeon.
The court made orders dismissing Fidgeon's claims against Westpac Banking Corporation and awarding costs to the bank. The court held that Fidgeon's claims were without merit and that the bank was entitled to recover its costs of the proceedings from Fidgeon. The court did not make any orders in relation to the legal practitioner's duty to the client as this was not a matter before the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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