Legal Research
Cases
Fried v National Australia Bank

Fried v National Australia Bank

Link copied

Case Copied 29 August 2001 17 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Fried v National Australia Bank Limited [2001] FCA 1280
INTEREST – rate of interest – appropriate rate on judgment for sum wrongfully debited to bank account – whether compound rate infringes prohibition against award of interest on interest
PRACTICE AND PROCEDURE – costs – whether costs should be ordered – complex proceeding involving many parties and issues, substantial number settled, one of several applicants partially successful against one respondent after one aborted trial and a long trial – impossibility of determining who was responsible for aborted trial – offer of settlement whether unreasonably refused – whether costs ordered in respect of trial after rejection of offer should be on an indemnity basis
Calderbank v Calderbank [1976] Fam 93, cited
Federal Court of Australia Act 1976 (Cth) s 51A(2)(a) & (b)
TAB FRIED AND ORS v NATIONAL AUSTRALIA BANK LIMITED AND ORS
VG 352 of 1998
GRAY J
29 AUGUST 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 352 of 1998

BETWEEN:

TAB FRIED
FIRST APPLICANT

EVA FRIED
SECOND APPLICANT

DAVID FRIED
THIRD APPLICANT

COMPACK PACKAGING EMPLOYEE SHARE PLAN PTY LTD (ACN 062 925 393)
FOURTH APPLICANT

EVATAB INVESTMENTS PTY LTD (formerly TED Engineering Investment Pty Ltd) (ACN 006 392 972)
FIFTH APPLICANT

INVOTIN PTY LTD (ACN 006 786 394)
SIXTH APPLICANT

WINDINA PTY LTD (ACN 074 583 412)
SEVENTH APPLICANT

EVATAB LEASING PTY LTD (ACN 074 572 204)
EIGHTH APPLICANT

AND:

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
FIRST RESPONDENT

BENNI ARONI
SECOND RESPONDENT
& FIRST CROSS-CLAIMANT

ADRIAN COLMAN
THIRD RESPONDENT
& SECOND CROSS-CLAIMANT

RICHARD STARLING CORNISH
FOURTH RESPONDENT
& THIRD CROSS-CLAIMANT

MARK WOLLAN
FIFTH RESPONDENT
& FOURTH CROSS-CLAIMANT

NORMAN SAMUEL FRYDE
SIXTH RESPONDENT
& FIFTH CROSS-CLAIMANT

BRUNO JOHN CHARLESWORTH
SEVENTH RESPONDENT
& SIXTH CROSS-CLAIMANT

BRUCE DAVID JOSEM
EIGHTH RESPONDENT
& SEVENTH CROSS-CLAIMANT

EFFIE KAVADAS
NINTH RESPONDENT
& EIGHTH CROSS-CLAIMANT

TED ENGINEERING AUSTRALIA LIMITED
(ACN 006 790 067)
TENTH RESPONDENT

BENDIGO BANK LIMITED (ACN 068 049 178)
ELEVENTH RESPONDENT

AND:

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
FIRST CROSS-RESPONDENT

WF TITCHENER & CO PTY LTD
SECOND CROSS-RESPONDENT

VICTORIAN LAWYERS RPA LIMITED
THIRD CROSS-RESPONDENT

WF TITCHENER & CO PTY LTD
CROSS-CLAIMANT

AND:

BENNI ARONI
FIRST CROSS-RESPONDENT

ADRIAN COLMAN
SECOND CROSS-RESPONDENT

RICHARD STARLING CORNISH
THIRD CROSS-RESPONDENT

MARK WOLLAN
FOURTH CROSS-RESPONDENT

NORMAN SAMUEL FRYDE
FIFTH CROSS-RESPONDENT

BRUNO JOHN CHARLESWORTH
SIXTH CROSS-RESPONDENT

BRUCE DAVID JOSEM
SEVENTH CROSS-RESPONDENT

EFFIE KAVADAS
EIGHTH CROSS-RESPONDENT

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
NINTH CROSS-RESPONDENT

VICTORIAN LAWYERS RPA LIMITED
TENTH CROSS-RESPONDENT

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
CROSS-CLAIMANT

AND:

VICTORIAN LAWYERS RPA LIMITED
FIRST CROSS-RESPONDENT

WF TITCHENER & CO PTY LTD
SECOND CROSS-RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

29 AUGUST 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.There be judgment for the fifth applicant, Evatab Investments Pty Ltd against the eleventh respondent, Bendigo Bank Ltd, in the sum of $5,451,998.39, including $1,151,998.39 by way of interest.

2. The eleventh respondent pay:
(a)the applicants’ costs of the application to join the eleventh respondent as a…

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.

Keep reading for free

Create a free CaseChat account to read Fried v National Australia Bank and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] FCA 1280
Decision Date: 29 AUGUST 2001

CaseChat Overview and Summary

The case of Fried v National Australia Bank involves multiple parties, with Evatab Investments Pty Ltd being the fifth applicant, and Bendigo Bank Ltd the eleventh respondent. The dispute concerns the amount of damages owed to Evatab Investments following a transaction that went awry. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was to determine the correct amount of damages owed to Evatab Investments, including interest, and to decide on the costs associated with the proceedings.

The legal issues centred on whether the appropriate amount of damages had been awarded, specifically whether the interest calculation was correctly applied. The court had to consider the applicable statutory provisions and case law to ensure that the judgment accurately reflected the losses incurred by Evatab Investments. Additionally, the court examined the costs orders to ensure they were fair and just, taking into account the conduct of the parties throughout the litigation process.

In delivering its judgment, the court found in favour of Evatab Investments, ordering Bendigo Bank Ltd to pay the specified sum of $5,451,998.39, inclusive of interest. The court meticulously reviewed the evidence and submissions to arrive at the precise amount owed. Regarding costs, the court held Bendigo Bank Ltd responsible for certain costs associated with the application to join and the trial, but otherwise dismissed any further costs orders. The judgment included a stay of execution to allow for any potential appeals and to provide a reasonable period for the respondent to settle the judgment amount.

The final orders of the court included a detailed breakdown of the judgment amount, the costs to be borne by Bendigo Bank Ltd, and the stay of execution. The court's decision provides clarity on the quantum of damages and the associated costs, thereby bringing a resolution to the dispute between the parties.

Orders

Orders of the court

1. There be judgment for the fifth applicant, Evatab Investments Pty Ltd against the eleventh respondent, Bendigo Bank Ltd, in the sum of $5,451,998.39, including $1,151,998.39 by way of interest.

2. The eleventh respondent pay:

(a) the applicants’ costs of the application to join the eleventh respondent as a party to the proceeding, made by notice of motion filed on 4 May 1999;

(b) the fifth applicant’s costs of the trial on and from 21 November 2000 up to and including 11 December 2000, on an indemnity basis.

3. Otherwise there be no order as to the costs of the proceeding, including the costs of today.

4. There be a stay of execution of the judgment until 4.15 pm on 3 September 2001.

5. Any notice of motion filed by the eleventh respondent seeking a further stay be made returnable on 3 September 2001 at 10.15 am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 352 of 1998

BETWEEN:	TAB FRIED FIRST APPLICANT EVA FRIED SECOND APPLICANT DAVID FRIED THIRD APPLICANT COMPACK PACKAGING EMPLOYEE SHARE PLAN PTY LTD (ACN 062 925 393) FOURTH APPLICANT EVATAB INVESTMENTS PTY LTD (formerly TED Engineering Investment Pty Ltd) (ACN 006 392 972) FIFTH APPLICANT INVOTIN PTY LTD (ACN 006 786 394) SIXTH APPLICANT WINDINA PTY LTD (ACN 074 583 412) SEVENTH APPLICANT EVATAB LEASING PTY LTD (ACN 074 572 204) EIGHTH APPLICANT
AND:	NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) FIRST RESPONDENT BENNI ARONI SECOND RESPONDENT & FIRST CROSS-CLAIMANT ADRIAN COLMAN THIRD RESPONDENT & SECOND CROSS-CLAIMANT RICHARD STARLING CORNISH FOURTH RESPONDENT & THIRD CROSS-CLAIMANT MARK WOLLAN FIFTH RESPONDENT & FOURTH CROSS-CLAIMANT NORMAN SAMUEL FRYDE SIXTH RESPONDENT & FIFTH CROSS-CLAIMANT BRUNO JOHN CHARLESWORTH SEVENTH RESPONDENT & SIXTH CROSS-CLAIMANT BRUCE DAVID JOSEM EIGHTH RESPONDENT & SEVENTH CROSS-CLAIMANT EFFIE KAVADAS NINTH RESPONDENT & EIGHTH CROSS-CLAIMANT TED ENGINEERING AUSTRALIA LIMITED (ACN 006 790 067) TENTH RESPONDENT BENDIGO BANK LIMITED (ACN 068 049 178) ELEVENTH RESPONDENT
AND:	NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) FIRST CROSS-RESPONDENT WF TITCHENER & CO PTY LTD SECOND CROSS-RESPONDENT VICTORIAN LAWYERS RPA LIMITED THIRD CROSS-RESPONDENT WF TITCHENER & CO PTY LTD CROSS-CLAIMANT
AND:	BENNI ARONI FIRST CROSS-RESPONDENT ADRIAN COLMAN SECOND CROSS-RESPONDENT RICHARD STARLING CORNISH THIRD CROSS-RESPONDENT MARK WOLLAN FOURTH CROSS-RESPONDENT NORMAN SAMUEL FRYDE FIFTH CROSS-RESPONDENT BRUNO JOHN CHARLESWORTH SIXTH CROSS-RESPONDENT BRUCE DAVID JOSEM SEVENTH CROSS-RESPONDENT EFFIE KAVADAS EIGHTH CROSS-RESPONDENT NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) NINTH CROSS-RESPONDENT VICTORIAN LAWYERS RPA LIMITED TENTH CROSS-RESPONDENT NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) CROSS-CLAIMANT
AND:	VICTORIAN LAWYERS RPA LIMITED FIRST CROSS-RESPONDENT WF TITCHENER & CO PTY LTD SECOND CROSS-RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	MELBOURNE