Foyster v Green - [2000] NSWSC 189

CITATION: Foyster v Green [2000] NSWSC 189

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3039 of 1999

HEARING DATE(S): 7 March 2000

JUDGMENT DATE: 22 March 2000

PARTIES :

Lloyd Foyster (Plaintiff)
John Duncan Green (First Defendant)
Australian and New Zealand Banking Group Limited (Second Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Ms R Sofroniou (Plaintiff)
submitting appearance (First Defendant)
Mr A.W. Street SC with him Ms J Stuckey-Clarke (Second Defendant)

SOLICITORS: G.H. Healey & Co - Newtown (Plaintiff)
PricewaterhouseCoopers - Legal (First Defendant)
Blake Dawson Waldron (Second Defendant)

CATCHWORDS: EQUITY - rectification - agreement made on day written document signed and prepared by parties - need for clear proof - both parties had signed deed of confirmation but one did not give evidence of intention - whether third party rights affected - whether rectification purposeless

LEGISLATION CITED: Bankruptcy Act 1966, s86, s232, Part X
Trade Practices Act 1974

CASES CITED: Foyster v ANZ Banking Group Limited [1999] FCA 1043

DECISION: See paragraph 21-23

1
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WINDEYER J
WEDNESDAY 22 MARCH 2000
3039/99 LLOYD FOYSTER v JOHN DUNCAN GREEN & AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
JUDGMENT
General Outline
1    The plaintiff, Lloyd Foyster, seeks rectification of an agreement he made with the first defendant, Mr Green, who was the trustee of his divisible estate, pursuant to a deed of assignment under Part X of Bankruptcy Act 1966.
Facts
2    Mr Foyster had banked with the ANZ Banking Group Limited (ANZ) for many years up to 1991. He was a director of Country Properties Pty Ltd which had entered into foreign exchange loans with ANZ, the obligations of that company as borrower being guaranteed by Mr Foyster. The first transactions took place in 1985. There were further borrowings in 1989. The foreign exchange transactions ended in a way which was not uncommon, namely that as a result of changes in currency values, Country Properties became indebted to the ANZ for a very large amount, the repayment of which was guaranteed by the plaintiff.
3    Mr Foyster brought actions in the District Court of New South Wales and in this Court against ANZ. It is not necessary to discuss the District Court action. The action in this Court was No. 13286 of 1991. The statement of claim was filed on 18 June 1991, but not served on the ANZ until 18 June 1993.
4 The deed of assignment under Part X was signed on 19 December 1991. The trustee's certificate that arrangements pursuant to the deed were completed was signed on 26 October 1992. The two actions I have referred to were choses in action which vested in the trustee under the assignment. They remained so vested when the deed came to an end. On 2 July 1993 ANZ issued a notice under s232 of Bankruptcy Act requiring the trustee to make an election about continuing the proceedings. No election was made. On 6 July 1993 the agreement in writing…

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: [2000] NSWSC 189
Decision Date: 22 March 2000

CaseChat Overview and Summary

The case of Foyster v Green was heard in the Supreme Court of New South Wales. The dispute arose from a property transaction where the parties had signed a deed of confirmation. The plaintiff sought to rectify the deed to reflect the true agreement made on the day it was signed and prepared. The defendant argued that there was no need for rectification as both parties had signed the deed, and any error could be rectified by the court. The court was required to decide whether the plaintiff could successfully seek rectification of the deed and whether the defendant's third-party rights were affected.

The court held that to succeed in a claim for rectification, the plaintiff must provide clear proof of the actual agreement between the parties. The court found that the evidence provided by the plaintiff was insufficient to demonstrate the true agreement, as the defendant had not given evidence of their intention at the time the deed was signed. The court also considered whether the rectification would affect any third-party rights and concluded that it would not. The court determined that the purpose of rectification was to correct the written document to reflect the true agreement, and in this case, it would not prejudice any third parties.

The court found in favour of the defendant and dismissed the plaintiff's claim for rectification. The court held that the plaintiff had not provided clear proof of the actual agreement, and therefore, the deed could not be rectified. The court also noted that any rectification would not affect any third-party rights. As a result, the plaintiff's claim was dismissed, and the defendant was not required to rectify the deed.

Orders