Garrett v Westpac Banking Corporation

FEDERAL COURT OF AUSTRALIA

Garrett v Westpac Banking Corporation [2007] FCA 439

PRACTICE AND PROCEDURE – summary judgment – s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – no demonstrated standing – no reasonable prospect of success

Federal Court of Australia Act 1976 (Cth) s 31A(2)
Bills of Exchange Act 1909 (Cth) s 59, s 28(1)
Banking Act 1959 (Cth)
Federal Court Rules O 20

UNCITRAL Convention on International Bills of Exchange and International Promissory Notes (1988)

ANDREW MORTON GARRETT v WESTPAC BANKING CORPORATION, TIERNAN WHITE AND CARL ZUBER

No SAD 9 of 2007

FINN J
26 MARCH 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 9 OF 2007

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

WESTPAC BANKING CORPORATION
First Respondent

TIERNAN WHITE
Second Respondent

CARL ZUBER
Third Respondent

JUDGE:	FINN J
DATE OF ORDER:	26 MARCH 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed with costs. 

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 9 OF 2007

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

WESTPAC BANKING CORPORATION
First Respondent

TIERNAN WHITE
Second Respondent

CARL ZUBER
Third Respondent

JUDGE:	FINN J
DATE:	26 MARCH 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The respondents in this matter, Westpac Banking Corporation and two of its employees, have moved the Court to have judgment entered in their favour pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) in respect of an application brought against them by Andrew Morton Garrett. In the alternative they seek orders that the proceeding be dismissed or stayed pursuant to O 20 of the Federal Court Rules or else that security be provided in respect of their legal costs in the amount of $80,000 and that the proceeding be stayed until that security be given.

2. The application purports to be bought by Mr Garrett in his capacities variously (i) as trustee of the Andrew Garrett Family Trust (No 3);  (ii) as trustee for Corporate Investments pursuant to a Declaration of Trust dated 31 December 2006;  and (iii) as trustee of the Andrew Garrett Group and Corporate Investments Joint Venture.  It seeks orders that the respondents (i) have breached the duty of care owed to him by a bank to its customer;  (ii) have breached the Bills of Exchange Act 1909 (Cth); and (iii) have breached the Banking Act 1959 (Cth). It went on to seek an order that Westpac credit to an account of Andrew Morton Garrett a sum of $11,350,000,000,000 and an order for damages. The application claims by way of interlocutory relief:

   “1.That Westpac give an undertaking as to damages in respect of a arising out of (sic) these proceedings and in particular, with respect to;

   a.Letter of Offer addressed to the Qantas Board dated 2^nd of January 2007 to purchase 100% of the Issued Capital of Qantas Ltd. 

   b.Letter of Offer addressed…