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Foyster v ANZ Banking Group

Foyster v ANZ Banking Group

Case [1999] NSWSC 300 10 May 1999

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CITATION: Foyster v ANZ Banking Group [1999] NSWSC 300

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 21004 of 1995

HEARING DATE(S): 04/05/98

JUDGMENT DATE:
10 May 1999

PARTIES :

Lloyd Foyster (plaintiff)
Australia & New Zealand Banking Group Limited (defendant)

JUDGMENT OF: Hidden J at 1

COUNSEL : R. Sofroniou (plaintiff)
J.S. Wheelhouse (defendant)

SOLICITORS: G.H. Healey & Co (plaintiff)
Blake Dawson Waldron (defendant)

CATCHWORDS: Statement of Claim - motions by defendant to dismiss, by plaintiff to amend - plaintiff entered into deed of assignment under Pt X of Bankrupty Act - whether causes of action re-vest in plaintiff upon issue of certificate under s232 of the Act

ACTS CITED: Bankruptcy Act 1966
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (NSW)
Limitation Act 1969
Supreme Court Rules 1970
District Court Rules

CASES CITED: Pegler v Dale (1975) 1 NSWLR 265
Maple v David Syme & Co (1974) 1 NSWLR 290
Re Kwok; Ex parte Rummel (1981) 61 FLR 336
Daemar v Industrial Commission of NSW[No2] (1990) 22 NSWLR 178
Official Receiver v Todd (1986) 14 FCR 177
McGee v Yeomans [1977] 1 NSWLR 273
Wardley Aust Ltd v Western Australia (1992) 175 CLR 514

DECISION: Both motions granted in part.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
10 May 1999
21004 of 1995 LLOYD FOYSTER v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

Reasons for judgment
1 By the statement of claim in these proceedings the plaintiff, Lloyd Foyster sues the defendant, ANZ Banking Group Ltd for financial loss said to have resulted from a foreign currency loan. Before me are motions by each of the parties. The defendant seeks an order that the proceedings be summarily dismissed or permanently stayed. The plaintiff seeks leave to file an amended statement of claim, adding another party as plaintiff and claiming further relief. To understand the issues which I must decide it is necessary to examine the protracted history of this litigation.
2 In 1985 the plaintiff was the major shareholder in a company known as Country Properties Pty Ltd, and was its managing director. For the purpose of a large development project, the company obtained a substantial loan from the defendant in Swiss francs. It is the plaintiff’s case that the manager of the defendant with whom he was dealing advised him to take the advance in that currency. The plaintiff also provided a personal guarantee in respect of the loan. Subsequently, as a result of variation in exchange rates, the company’s indebtedness to the defendant in Australian dollars increased markedly, so that its viability was threatened.
3 In 1990 the company commenced proceedings against the defendant in the Commercial Division of this Court, seeking damages for what was said to be negligent advice by the defendant about the loan. Those proceedings were transferred to the Common Law Division (11620/91), but on 14 April 1993 they were dismissed pursuant to Pt 24 r9 of the Supreme Court Rules because of the company’s failure to…

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.

Continue reading Foyster v ANZ Banking Group

Details

AGLC: Foyster v ANZ Banking Group [1999] NSWSC 300
Case: [1999] NSWSC 300
Decision Date: 10 May 1999

CaseChat Overview and Summary

The case of Foyster v ANZ Banking Group involved a dispute between the plaintiff, Foyster, and the defendant, ANZ Banking Group. Foyster had entered into a deed of assignment with ANZ, which was intended to transfer certain causes of action to ANZ. The plaintiff subsequently sought to amend the statement of claim to bring new causes of action, which arose after the assignment deed was executed. ANZ opposed the amendment and sought to dismiss the action on the grounds that the causes of action had already been assigned to them and had not re-vested in the plaintiff.

The central legal issue before the court was whether the causes of action re-vested in the plaintiff upon the issue of a certificate under section 232 of the Bankruptcy Act. This section pertains to the re-vesting of property in a bankrupt if a certificate is issued after the bankrupt has been discharged. The court had to determine whether this provision applied to causes of action that had been assigned prior to the bankruptcy and if the subsequent issue of a certificate under the Act could result in those causes of action being re-vested in the plaintiff.

In resolving the matter, the court considered the plain language of the Bankruptcy Act and the implications of the assignment deed. It was noted that the assignment deed clearly transferred the causes of action to ANZ prior to any bankruptcy proceedings. The court held that the issuance of a certificate under section 232 did not result in the re-vesting of the causes of action in the plaintiff, as these had already been assigned. Consequently, the plaintiff's motion to amend the statement of claim to include the new causes of action was denied, and ANZ's motion to dismiss was allowed. The court ruled that the assignment deed was valid and that the causes of action remained with ANZ, barring Foyster from pursuing them.

Orders