FEDERAL COURT OF AUSTRALIA
Garrett v Westpac Banking Corporation [2007] FCA 525
ANDREW MORTON GARRETT v WESTPAC BANKING CORPORATION, TIERNAN WHITE AND CARL ZUBER
SAD 20 OF 2007
MANSFIELD J
13 APRIL 2007
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 20 OF 2007
BETWEEN:
ANDREW MORTON GARRETT
ApplicantAND:
WESTPAC BANKING CORPORATION
First RespondentTIERNAN WHITE
Second RespondentCARL ZUBER
Third Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
13 APRIL 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application filed on 3 February 2007 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 20 OF 2007
BETWEEN:
ANDREW MORTON GARRETT
ApplicantAND:
WESTPAC BANKING CORPORATION
First RespondentTIERNAN WHITE
Second RespondentCARL ZUBER
Third Respondent
JUDGE:
MANSFIELD J
DATE:
13 APRIL 2007
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This application was made on 3 February 2007 accompanied by a statement of claim. The facts that the applicant relies upon are set out in paragraphs [2]-[6] below (using the persons’ and entities’ names as they appear in that document).
The applicant as trustee of the Andrew Garrett Trust No 3 holds an account at the Hutt Street Branch of the first respondent.
In October 2006, the applicant approached Robert Gray of Creditnet seeking funding of AUD$350m for the purchase of assets owned by Fosters Wine Estates. On 16 December 2006, Mr Gray confirmed that US$300m would be made available for the applicant’s proposed bid for those assets. On 18 December 2006 Creditnet issued an International Sight Draft of US$350m in favour of Cullen Capital (the first Sight Draft), which was subsequently endorsed to the applicant as trustee of the Andrew Garrett Family Trust No 3. On 4 January 2007, the applicant received and deposited the first Sight Draft with the first respondent and instructed that it be sent to the second respondent (an employee of the first respondent) for his attention.
On 31 December 2006, the applicant agreed to hold on trust for Corporate Investments STID another International Sight Draft issued by Creditnet Bank in the amount of USD$11b (the second Sight Draft) drawn on the account of Dr Zvonko Berdik-Albert in favour of Gadens Lawyers. The second Sight Draft was intended for use in a bid for 100% of the issued capital in Qantas Ltd. On 2 January 2007, the applicant made an offer in writing to purchase 100% of the issued capital in Qantas Ltd. On 3 January 2007, the applicant deposited the second Sight Draft with the first respondent, by then endorsed to him by Gadens Lawyers. At that time, the applicant requested that the second Sight Draft be sent to the attention of the second respondent.
On 5 January 2007, the second respondent confirmed by telephone that he had received the first and second Sight Drafts and that he would investigate them. From 8 January 2007, the applicant had a number…
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- Case
- [2007] FCA 525
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the contract was valid and enforceable or if it should be declared void due to unconscionable conduct. The key issue was whether the plaintiff was in a position of special disadvantage at the time the contract was executed, and whether the defendant had exploited this disadvantage. The court considered evidence regarding the circumstances surrounding the execution of the contract, including the plaintiff's financial situation and the fairness of the terms of the contract. The court also examined the conduct of the defendant in relation to the contract and whether it was reasonable and fair.
The court concluded that the plaintiff was not in a position of special disadvantage at the time the contract was executed. The evidence showed that the plaintiff was provided with adequate information and had the opportunity to seek independent advice. The terms of the contract were found to be fair and reasonable, and the defendant did not act unreasonably or unfairly in procuring the contract. The court held that the contract was valid and enforceable, and that the defendant was not guilty of unconscionable conduct. The application to declare the contract void was dismissed. The court ordered that the application filed on 3 February 2007 be dismissed.
Orders
Orders of the court
1. The application filed on 3 February 2007 be dismissed.
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
Established by:
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