Ian Hamilton Fisher and Joan Rosemary Fisher v Commonwealth Bank of Australia

[1990] FCA 846

8~ J CS0 l

JUDGMENT No. .... d.

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-	-	-	W S	O	1	No. G766 of 1988
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BETWEEN: -

First applicant

-

Second applicant

A+w~ NWEALTH BANK OF

Respondent

CORAM: Beaaunant J. 1

DATED% 1 August 1990

REASONS FOR JUDGMEW

(Su DD 1 e me nt a rv reasons for ludament (No. 2 1 with

res~ect to the findinas made on 16 Mav 1990 as to the exmess

remesentations alleaed in the second further jamended

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At the request of the parties, I now give the following supplementary reasons with respect to the findings made on 16 May 1990.

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1.   The meetina in Taree in Auaust 1984 (findinas ~~.77-9).

(a) Mr. Fidher's versioq ! !

(1) The evidence that Mr Ray Stack said this was not

challenged. It was a likely way to open the discussions.

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( 2 ) Mr Green gave the impression in giving his evidence

that he believed that he had, and he did in fact have, some 1 l l l

special knowledge in this area. In the present context, it is

likely that he would have said something along these lines. 1 1

(3) Before and after the discuseion with Mr Green, Mr Fisher made inquiries of many persons with respect to the relative advantages, and disadvantages, of negotiating a foreign currency loan, In the present context, it is likely that he would have said something along these lines.

(4) See the findings at p . 7 7 . If, as I have found, Mr

Green had some special knowledge in the area, it is unlikely

that he would have made a sweeping statement that foreign

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currency loans were "excellent value, [an] excellent way of

borrowing."

(5) See (3) above. (6) See (2) above, (7) In the absence of the graph, I am not satisfied that

this was said.

(8) In the circumstances, it is likely that detail of this kind would have been discussed.

(9) (10) (11) (12) and (13) I think that it is improbable that such naive questions and answers would then have passed between persons of their experience.

(14) (15) (16) (17) (18) (19) (20) It was logical to expect that a borrower and a bank officer would wish to discuss these matters on such an occasion.

(21) It was unlikely that a bank officer of Mr Green's knowledge and experience would, in effect, undertake to bring the loan onshore at a particular future date.

(22) (23) (24) (25) (26) (27) (28) and (29) There is some

common ground here with Mr Green's version, In any event, it

is inherently likely that this topic would have been diecussed

along these linee in the circumstances.

(30) and (31) I think that it is improbable that such a naive question and answer would have passed betsween persons of their experience.

(32) (33) (34) (35) (36) (37) and (38) It is inherently probable that these matters would have been discussed.

(b) -Green's version i

(1) It is inherently improbable that Mr Fisher would have opened the conversation by asking "straight outn for a $1.38m. Swiss Franc loan. At the same time, as Mr Green's diary note of 17 August stated, it is clear that, at some appropriate stage in the conversation, Mr Fisher enquired about the availability of a loan equivalent to $1.3 m. AUD. It is common ground that a Swiss Franc loan was mentioned.

(2) (3) (4) (5) (6) (7) (8) (9) and (10) There is some common ground here with Mr Fisher's version. In any event, it is inherently likely that these topics would have been discussed along these lines on this occasion.

(11) Except for the reference to the solicitor, it is inherently likely that a discussion along these lines would have occurred.

(15) This finding is supported by Mr Green's contemporary

note.

(16) See (9) of Mr Fisher's version.

2.         F u e r l s a~groach to Mr Parton in October 1984

U8 D.22).

It is not necessary to supplement the reasons.

3. The meetigafs! with Mr Shaw [findinas ~ ~ 7 9 1

Mr. Fisher and Mr Parton gave evidence of one meeting only. However, Mr Parton's diary indicates that he met with Mr Shaw twice in November 1984. .This appears to be the best evidence of the dates of these meetings.

As has been said (findings p.77), Mr Shaw was an independent witness. I have indicated (findings p.79) that I entirely accepted his evidence. I found his version of the events to be a most convincing one.

4. The meetina in Forster in December 1984 (findinas ~ ~ 7 9 )

I think that it is inherently improbable that, on

this occasion, Mr Isaacs would have made any significant

statement. I found Mrs Skeltonts general recollection of the

discussion to be good, and to be reliable. Her version was

consistent with the objective facts, and in particular, her

lack of knowledge of the complications inherent in a foreign

currency loan.

5. The alleaed meetina in Februarv 1985 (findinas p.80L

As has been said (findings p.45), Mr Fisher's recall

of the date of this alleged meeting was not correct, Since Mr

Isaacs is dead, I am not prepared to accept Mr Fisher's version of the discussion.

6.    The meetba with Mr Vanner in F e b w r v 1985 f findinas

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Mr Vannerrs version of this discussion was convincing and was reinforced by Mr Haders note.

7. The l ~ c h b A~ril 1985 !fipdinaS ~ * 8 0 1

It is not necessary to supplement this finding.

8. The discussion in Auaust 1985 (findinas 0.801

There is no reason to doubt the accuracy of Mrs

Skelton's diary note.

9. me alleaed discussion with Mr McT&od in Se~tember 1985

The conversation alleged could not have taken place

when Mr Fisher said (see findings p. 67 ) . I am not satisfied

that Mr Fisher's recollection of any discussion along the

lines suggested is reliable.

10. The meetina in Februarv 1987

No supplementary reasons are necessary.

I h e r e b y c e r t i f y t h a t t h i s and t h e

p r e c e d i n g f o u r ( 4 ) pages a r e a t r u e

copy of t h e supp lemen ta ry r e a s o n s

p u b l i s h e d on 1 August 1990 by h i s

Honour M r .	J u s t i c e Beaumont
A s s o c i a t e

10 August 1990