Lormier v State Bank of New South Wales

[1992] HCATrans 121

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S84 of 1991

B e t w e e n -

PATRICK WILLIAM GIBB LORIMER

Applicant

and

STATE BANK OF NEW SOUTH WALES

Respondent

Application for special leave
to appeal

MASON CJ TOOHEY J GAUDRON J

Lorimer 10/4/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 APRIL 1992, AT 9.32 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT QC: Your Honours, I appear with

MS J.M. SANDFORD for the applicant. (instructed by

Everingham, Solomons & Co)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR P. HALLEN, for the respondent.

(instructed by P.W. Kearns)

MASON CJ: Yes, Mr Ellicott.

MR ELLICOTT:  Your Honours, this is an application for

special leave from the judgment of the Court of

Appeal of New South Wales. The trial judge said

that this was a tragic case and, indeed, it is a
tragic case. It arises at a time and in a

situation where there are lots of tragic cases like

this which have arisen between farmers and banks

and financial institutions, certainly in New South

Wales, where the farmers have believed that the bank was going to stand by them in times of

trouble. In other words, this is not an isolated

case.

MASON CJ:  But it turns on its own facts naturally.

MR ELLICOTT: It will turn on its own facts, and I shall

come to those in a moment. But I just wanted to

stress that it is a matter of public importance; it

does not stop with this case, and if the Court saw

fit to grant special leave in this case the Court

would, I would suggest, have to analyse the

principles of the relationship between a bank and
its customer, where that customer is a farmer,

probably for the first time. That is an important

legal and social problem. It certainly is at the

present time. That would take place in the context

of a part of the law which is developing and this

Court is fully aware of the cases that it has had

to decide in recent years relating to estoppel, the

apparent - I say apparent divisions in the Bench

between various points of view as to estoppel,

whether there is one estoppel, whether there is

still a common law estoppel and an equitable

estoppel, et cetera. All that part of the law, of

course, is obviously in a state of development. So

this is potentially, we would submit, a case which,

if Your Honours are satisfied that there is a real

question involved on its facts, then Your Honours

would see fit to grant special leave.

I shall now leave that matter and go to the

facts themselves. I wanted to say at the outset we

are not here concerned to go behind the findings of the trial judge, but it is important that I be able to just refer Your Honours to some facts along the

Lorimer 2 10/4/92

path leading up to the critical decisions that were

made on or about 17 July 1985.

It starts off at a time in April 1985 when the applicant was in deep financial difficulties and

had found himself in that position, not because of

some lack in financial capacity in terms of

judgment but because he suffered floods in 1984 and

1985.       He was in a position then when, in all, he

owed some $290,000. Your Honours will know that

the State Bank was once called the Rural Bank and

that it handled other funds -

MASON CJ: Justice Toohey may not know that until you

informed him but Justice Gaudron and I would know

that.

MR ELLICOTT: That meant that it was farmers' bank. I am

not sure whether it now regards itself as the

farmers' bank.

MASON CJ:  I would not think so.

MR ELLICOTT: But in those days it was seen as the farmers' bank and these relationships grew and it would not be unusual that there would be close relationships between the bank, the bank manager and the farmer. But in any event, by April 1985 he was heavily in

debt to the sum of $290,000, some of that money

borrowed from other institutions which were set up

to aid farmers, but $60,000 of it owing to the

Bank. The Bank held a mortgage over his property

and his property was in the developing cotton

growing area of Wee Waa which is west of Narrabri

in north New South Wales.

When it came towards the end of the cotton

season in 1985, the question obviously arose as to

what he was going to do with this heavy debt. He had two options which he formulated and discussed

with his accountant. his debts and get out; the other was - and this One was to sell up, pay off	happened, to some extent, because somebody came
along and offered to sell him a tractor - to buy a
tractor with a scraper, to level off some further
land, some 120-140 acres which was irrigable, and
to plant a cotton crop in the following year and, of course, by that method, get out of his problems.

He decided to pursue what was called option 2,

but he did so after having discussions with his

accountant, as I say, and also with officers of the

Bank.	Now, there are two relevant officers of the
Bank.	One was a Mr Board, who was the Bank's

district valuer, and the other was Mr Jones, who

was the manager at Narrabri. Now, there were some

things that the Bank knew - and I have to take

Lorimer 10/4/92

Your Honours to some passages - before the vital

date, which was 17 July 1985. One thing that they

knew was that the steps in option 2, which involved

buying - - -

MASON CJ: Before we go into all this, can you indicate to

us what is the case of estoppel that you are

presently trying to make out, so that we can fit

this evidence into a framework.

MR ELLICOTT: Yes. Your Honour, I will be submitting that

he acquired the tractor through a leasing

arrangement and -

MASON CJ: It was actually a hire purchase agreement, was it

not?

MR ELLICOTT: It was by finance leasing. Of course, finance

had to be arranged with another institution.	I
will be submitting that he entered into that

arrangement and set off and engaged in option 2,

not just buying the tractor but using it to level the land, and then to prepare it for cropping and

pay all those expenses, he did that on the

assumption that he had an arrangement with the

Bank, is one way of putting it - he had an

arrangement with the Bank to advance the necessary money to pursue option 2 or, alternatively, and in the light of findings below this may be the one I

have to pursue, he did so on the basis, as he saw

it, that he would get the money from the Bank.

One can say that he may have taken a risk in

that respect, on the facts, but it was abundantly

clear that he had no other source of finance; that

he set off on the track by drawing a cheque on his

account with the State Bank and that the Bank then

honoured the cheque.

GAUDRON J: This means, does it, that the assumption had to

have been made not later than 16 July?

MR ELLICOTT:  No, Your Honour, certainly it could have been

made later.

GAUDRON J:	How much later?
MR ELLICOTT:	I am sorry, Your Honour means the assumption

that he made?

GAUDRON J: Yes.

MR ELLICOTT:  On 17 July.

GAUDRON J: At the latest?

Lorimer 4 10/4/92

MR ELLICOTT: Yes, so far as he was concerned. He was

acting on the assumption that the Bank would

provide the money. Now, he could not start without

the Bank providing the money and he drew a cheque and the Bank met the cheque. It was a cheque for $10,000 which was the first installment on the

leasing arrangement.

GAUDRON J:	But he must have made the assumption, on the estoppel you put forward, before he even drew the
cheque.

MR ELLICOTT:  He set off on that path on that assumption. I

do not know whether it was at the moment he drew

the cheque or immediately before it, but he

certainly set off on that path on that assumption.

Once the Bank honoured the cheque, the Bank was

itself, one can say on one basis of estoppel,

imprudently, in the circumstances, leading him to

believe that that was a correct basis upon which to

operate with the Bank from there on in.

After that, as the facts will disclose, he drew cheques and the Bank, knowing that they were

directed towards pursuing option 2, and knowing

that the steps in option 2 were interrelated, the

Bank met those cheques and, indeed, at one stage

the Bank, knowing that it was not going to

recommend approval of the loan, deliberately did not tell him but left him in the belief that the

Bank officer was going to recommend approval.	So
after that further cheques were drawn.	So he is

well and truly into it and the Bank then says, we

will pull the rug from under you, and left him in

midstream, in another flood, as it were, but this

time created by the Bank, a flood of debts and

indebtedness.

GAUDRON J: But what was the detriment on that latter view?

MR ELLICOTT: The detriment was that the Bank, allowing him

to proceed, we say imprudently on the assumption

that the Bank was going to back him or to provide
the funds, he acted to his detriment because he
levelled the land and he incurred all the expenses

in acquiring a tractor and using it, depreciating

it - - -

GAUDRON J: But he had done that tractor well before those

matters, had he not?

MR ELLICOTT:  He may have, Your Honour, but this is why I

wanted to take Your Honours to the facts, because

it is not helpful to leap ahead. One has to

understand that it is quite clear the Bank knew
that these were all interrelated steps and it was

one in, all in. It would have been stupid for him

Lorimer 10/4/92

to buy a tractor if it was not going to be used for

option 2. They knew that once he had bought the

tractor he was going to set off on option 2. He

was going to see it through and that was his way

of, in effect, trading himself out of these

difficulties. The Bank just left him high and dry.

That is a different sort of simile, Your Honour.

He was in the middle of a river before; he is now

high and dry, but he is high and dry without any

help or assistance.

MASON CJ: But is not the problem with this reconstruction

of a case that the case presented at trial was that

on 16 July, the day before entry into the lease

agreement for the tractor scraper, he claimed that

the Bank promised that it would fund option 2 or

represented that it would fund option 2. The

finding of the trial judge was to reject the case

the applicant presented on that score and in so

doing the trial judge accepted the Bank officers as

witnesses of credibility and did not accept the

applicant as a witness of credibility.

MR ELLICOTT:  One of the arguments was that the Bank was

estopped from asserting that there was not an

understanding or agreement to fund him.

MASON CJ: But at trial the argument was there was a

representation that estopped the Bank, a

representation arising from the conversations, in

particular the conversation that took place on the

day before entry into the lease agreement.

MR ELLICOTT:  Your Honour, all the facts and all the

circumstances going to the relationship and going

to the question of representation or contract or

estoppel were ventilated before the court. If

there is any difference between what was submitted

in the Court of Appeal and what I am submitting
here, it is only a difference of legal expression

of the duties and obligations - - -

MASON CJ: But that is one of the problems, is it not,

because the majority in the Court of Appeal took

the view that the estoppal case presented in the

Court of Appeal on the basis of the adverse

findings of fact was different from the estoppel

case presented at the trial.

MR ELLICOTT: Contrary to what those justices held, we look

to the judgment of Mr Justice Kirby, the President,

and he points to various findings of fact and

various assertions and statements and findings by

the judge which support the view that we are

putting, and indeed, he found in our favour on the

basis of that. That was a basis of an estoppel by

Lorimer 10/4/92

imprudence on the part of the Bank.	But it is only
another way of saying the same thing.

GAUDRON J:  But the President did not find that you had

suffered the detriment that you claimed at first

instance. He did not find that you had embarked on

option 2 as a result of the Bank's imprudence and

he said the matter would have to go back to have

the detriment analysed.

MR ELLICOTT:  He said that there had been no decision as to

what detriment we had actually suffered because Mr Justice Brownie, in his wisdom, decided that once he had dismissed the question of liability,

there was no need for him to go into that area
because once he said that there was either no

contract or no estoppel, there was not much point -

that is the basis of the estoppel was not there as
to some representation, that there was not any

point in going to detriment. But the question of

detriment and the expression of that in terms of

damages would clearly be a matter, as the President

thought, that the trial judge would have to

consider.

But these facts about what happened on two

days can be expressed in one of two ways: they were

expressed before the trial judge on the basis of it

being a contract or a representation. Those same

facts, the very same facts investigated, can be

expressed in terms of an estoppel based on

imprudence or just an ordinary - - -

TOOHEY J: But is that not the problem, Mr Ellicott, that

the contract case and the estoppel case really are

much the same, are they not, unless you isolate the

honouring of cheques by the Bank and seek to found
an estoppel on that conduct? Because once the

trial judge had found against you on the contract,

what was left to support an estoppel other than the

honouring of cheques?

MR ELLICOTT:  The events of the very time which were being

investigated on 16 and 17 July.	Those were the
relevant dates.	On those dates all that had to

happen in order to create the estoppel happened and

they were fully investigated. And what we are

submitting here today is that on those dates there

was, in substance, an acceptance by the Bank, by

their imprudence, one can say, that the applicant

was proceeding on the assumption that the Bank
would fund him. That happened at the very time

that he is saying to the Bank, "Are you sure

everything is going to be all right?" I have to

argue this on the basis that the Bank manager said,

"Oh, it is a matter of management; it is a

management decision." That does not say the Bank

Lorimer 10/4/92

is not going to advance moneys; all that means is

it is a matter for you. Of course it was a matter

for him to decide whether he was going to pursue

option 2, but the Bank was not saying, in that conversation, "We are not going to back you or

advance moneys to you."

MASON CJ: But, Mr Ellicott, - - -

MR ELLICOTT: If I could just finish this, Your Honour.

That is why we are saying that this question of

what was argued before the trial judge, and what we

are putting here, are just two ways which lawyers use of saying the same thing. So far as estoppel

is concerned, it is the same thing, and there is

only one - if, for instance, Your Honour

the Chief Justice's view of estoppel - and I say
this with respect - is the view that the majority
of the court adopt, then there is only one

estoppal. It may have different facets to it, but

when it came to analysing what happened on those

dates, then to raise the question of estoppal,

albeit by some representation, was also to raise

the question of estoppel in so far as those events

were concerned in other respects because the

estoppal is one - there is no special difference

between one form of estoppel or another. One talks

about estoppel in pay, well one will analyse it

differently perhaps, but in the end that is only

referring to the particular situations.

It is in that respect that we say that the

Bank at that time was actually adopting the

proposition which is really no different to saying

that it has agreed to do it, that he was acting on,

namely, not if it is not precisely "there is a

contract between us" but "I am proceeding on the

understanding that the Bank will advance these

moneys to me", and that very next day the Bank had

a duty to say to him, "Look, we will honour this

cheque, but please understand that we are not doing

so on the basis that apparently you are acting

upon, namely, that we are going to advance all the

moneys for option 2."

MASON CJ:	But that proceeds on the footing that the Bank was aware, or perhaps ought to have been aware,
that he was proceeding on the footing that the Bank
would fully fund option 2.

MR ELLICOTT: Yes.

MASON CJ:	Now you have not got a finding to that effect.
MR ELLICOTT:	I have got a finding that the facts are there,

I would submit, Your Honours.

Lorimer	8	10/4/92
MASON CJ:	You say the facts are there.	You mean the

evidence is there.

MR ELLICOTT:	Yes.
MASON CJ:	Now, in the Court of Appeal two judges say that, (a), there is no finding, and one judge says there
is no evidence to support that view.

MR ELLICOTT: Yes, that is right. Another judge says there

is.

MASON CJ: Yes.

MR ELLICOTT: They were wrong and he was right.

MASON CJ:	Why should we take on a case where there is that disparity of view in the intermediate Court of
Appeal about the facts and the evidence and what
the effect of the trial judge's findings is?

MR ELLICOTT: First of all, because it is an important case.

That is because it has got public importance.	But
also because, if Your Honours are satisfied,

justice is going to be done to an individual, that

is why. And if two judges take too narrow a view,

bhen this Court ought to intervene if that is the

situation. We submit that they have taken too

narrow a view. And the development of the law of

estoppel is not about some esoteric discussion of

cases in the past; the development of that law

relates to particular cases and particular facts

and circumstances.

The facts of this case, we submit, when looked

at leave one with no other impression than this,

that the Bank must have known that on 17 July

Mr Lorimer was proceeding on the basis that he

would get the money from the Bank. There was

nowhere else to get it from. If he had started on

the track, the Bank knew there was an

interrelationship between all the steps in option

2, and the fact that they believed that and

understood that is borne out by the fact that over

ensuing months, contrary to what they had done in

the past, they advanced moneys to Mr Lorimer to

pursue option 2. That only confirmed that what

they did on 17 July was done in an acceptance of
that fact that he understood and believed that they

were going to go ahead and give him the money.

Why did that gentleman, Mr Board, in the

middle of September, as the evidence revealed, why

did he admit that he had lied to Mr Lorimer? The

judge tries to explain that away and say, oh, that

is understandable. Lies are not understandable if

they lead people to act to their detriment. He may

Lorimer 9 10/4/92

have felt, oh, I did not want to be hard on him; I

did not want to tell him the truth because it might

hurt him. That is not a way for the Bank officer

to act. The Bank, at that stage, was allowing him

to proceed on the definite basis still, on the

faith that the Bank would back him. There was no

point in going ahead, no point in getting the

sprays or clearing further land with the scraper,

no point in getting ready to get the cotton seed

and make the arrangements with the gin or whatever

it was that he was doing, and the funds that were

spent between July and October amounted to, in addition to the $10,000, some $45,000 or more.

GAUDRON J:  One of the difficulties you have, it seems to

me, Mr Ellicott, is that the President seems to

suggest that such assumption as your client did

make was made in October 1985, not July.

MR ELLICOTT:  Your Honour, he may say that, but all I am

trying to submit to Your Honours is that the facts

scream out, with respect, what I am submitting to

the Court. I would suggest to the Court that there

is no - there could hardly be any stronger

assumption on the part of the farmer, Mr Lorimer,

than that the Bank would back him.

GAUDRON J: Yes, but it is the time that the assumption is

made that is critical.

MR ELLICOTT: Well, the time the assumption is made must

have been when he set off on the track.

GAUDRON J:  No one has found that, it seems to me, at all.

MR ELLICOTT: But they found this: the trial judge found

that he believed these Bank witnesses and it is

important to find out what those Bank witnesses

actually understood at the time. We have filed a

supplementary book. Could I just take Your Honours

to some of those pages because they are important
to our submission.	Do Your Honours have copies of

those. We have filed it. Your Honours, it is

clear, just before I take Your Honours to this,

that prior to July 1985 the applicant had been a

customer of the Bank and was deeply in debt; the

Bank was its mortgagee, had the hold over its real

estate and, for the purposes of the actual

obtaining of finance for leasing, the Bank gave

certain opinions to other Banks, and you will find

those in documents on pages 2, 3 and 4, and these

were exhibits. 24 June: ·

Established farmer & grazier. Property owner

in sound financial position. Considered safe

for amount of enquiry.

Lorimer 10 10/4/92

Same thing on 3. On page 4:

Property owner & established primary producer

involved chiefly in cotton growing.

Considered reliable & appears to meet

commitments. Ability to service commitment.

Considered safe but would be dependent upon

seasonal factors.

That is the basis upon which the matter was

approached by them in influencing other

institutions to finance the purchase of the

tractor. At pages 6 and 7, at the bottom of 6,

Mr Jones the manager says:

I am not asking you whether you discussed

specific figures, but whether you discussed

with Mr Board the question or the possibility

of the branch providing ongoing

assistance ..... ? A. Yes.

Q, So at the time you were having those discussions with Mr Board you knew that there

was an overall proposal being made by

Mr Lorimer, and that overall proposal was in

three parts: the acquisition of the tractor

scraper; the development of additional cotton

land ..... and coupled with that, financing his

85/86 cotton crop? A.	In general terms, yes.
Q.	And when you were having those discussions

with Mr Board you understood that this was a

package deal that was being discussed? A.

Package deal in the sense that this was the

overall proposal that Mr Lorimer was putting

to the bank, but not that we would finance the

whole of that package.

Q. I am not suggesting that, but you

understood that what Mr Lorimer was proposing

was a package deal with those three elements?	A.	Yes.
Q.	You knew at the time that you were having

those discussions with Mr Board, that each of
the three elements was very closely

interrelated? A. Yes.

Q. You knew, for example, that it would be a

waste of time for Mr Lorimer to acquire the

tractor scraper, to pay the deposit, to enter

into the lease, if the bank was not going to

provide funding for the development of the

additional land? A. If he was to go that

path, yes, he certainly could have carried on

without the tractor and the additional land.

Lorimer 11 10/4/92

He seemed to slip out of it, but then, down the bottom, the third last question:

Q. Where did you think he was going to get the money to carry out the development works

after he acquired the tractor if the bank was

not going to support him? A. If he was not

going to get the money to develop the
property, well, there was no point in buying

the scraper, I would assume.

Q. That is exactly right, and you knew that

at the time, did you not?	A.	Yes.
Q.	Of course you did? A.	Well, it is only

in general terms, the discussions at that

stage.

Page 8:

Q. Having got to that point, the next step

is, it was absolutely essential that he had,

after he had acquired the tractor scraper,

that he had finance to develop the extra land

and to plant his 85/86 cotton crop? A. Yes.

Q. Because without finance he could not have

proceeded? A. Yes.

Q. You knew that in May/June 1985? A. In

general broad terms, yes.

Q. You understood? A. Understood, yes.

Q. That important interrelationship? A. Yes.

Q.	You ..... knew Mr Lorimer?	You had met
him ..... ?	A.	Yes.

Now, at page 9:

Q. He was well aware that it was no user to

him commercially acquiring the tractor scraper

unless he knew that he would have the funds to

develop the additional land and to plan his

85/86 crop? A. Yes.

Q. These were matters that you discussed with

him? A. Only in general terms at that time.

Q. But these were matters that you discussed,

this important interrelationship you discussed

with Mr Lorimer? A. Yes.

Q. You knew that he was well aware of that

vital interrelationship? A. Yes.

Lorimer 12 10/4/92

At page 16, Mr Board, in a passage half-way down

the page and over the next page, he says the same
thing. That is the mind of the Bank and that is
what they understood at the time these

conversations took place.

Your Honours, when they came to advance moneys

it was clear that he had not operated like this

before. If I could take Your Honours quickly to
pages 11 and 12, because these things do not appear

as precisely in the judgments, but they were before

His Honour and they are undisputed facts. This is

about a third of the way down:

Q. You met Mr Lorirner's cheques as they came

in? A. I did, in the normal course of

business.

Q. In the normal course of business, during

the period between late July and the time when

Mr Board went out to do the valuation

Mr Lorimer's account went further and further

into overdraft, did it not? A.	It did.
Q.	When you met the cheque -

that is the $10,000 -

it put the account into overdraft by $3385?

A. Yes, but I think a few days later there

was money corning in from cotton.

Q. There were, by 31 July, the account was

overdrawn by nearly $10,000; by 2 August it

was overdrawn by $21,000; by 23 August it was

overdrawn by nearly $25,000? A.	Right.
Q.	You did not ask him for any written

application for that mounting overdraft? A.

No. There were - cheques were met there in

relation to living expenses, the tractor

deposit and end-of-season accounts, from the

previous season.

Q. Certainly his account in the previous

twelve months had never been operated like
that? A. No, because - but we had given him

plenty of funds in the previous twelve months.

Q. And in fact, of course, he had those

funds, you	are talking about the bill
facility?	A. He had utilised those funds,
yes.
Q.	He still had the statutory authority

advances? A. The Rural Industry Agency, yes.

He had utilised those funds as well.

Lorimer 13 10/4/92

Q. So during 84/85, except for that one short

period, his account was always in credit? A.

Yes.

Q. After 26 July 1985 his account grows, the overdraft grows substantially, almost daily?

A. That is correct.

Q. And, as I said, by 23 August when Mr Board

prepared his report, the overdraft was nearly

$25,000? A. Yes.

Q. That certainly was a total departure from

the previous year? A. That is right. We did

not have his account at the time the previous

year.

Q. In fact the overdraft continued to mount

until 14 October 1985 when it reached $56,000.

By 14 October you still have not required

Mr Lorimer to make any written application,

have you? A. No. He had drawn his cheques

and I paid them.

So, Your Honours, we rely on that not only to show

that the Bank was confirming the assumption, but it

also shows the Bank's state of mind in July 1985,

because there is no attempt by the Bank, so far as

Mr Lorimer is concerned, to warn him, advise him or

to do anything about it.

Now, Your Honours, the relationship between

Bank and customer is a special relationship. That

is not an irrelevant factor in these circumstances.

It can lead to different types of duties. But in

assessing whether estoppel exists, the nature of

the relationship was important. I do not want to

develop this because I would submit it is clear

that it may lead to different duties expressed in relation to negligence, for instance, the duty to

advise, the duty to inform. In so far as he is

saying to the Bank, "This is what I am going to do

to get myself out of trouble", the Bank is assuming
the role of an investment adviser and, at least in
the Federal Court, it has been held in a recent

case that that gives rise to a fiduciary

relationship.

So those are factors which exist in this case,

because of the previous relationship and because

the Bank had a conflict of interests. The Bank was

a mortgagee and here it was with this mortgage and
it has its customer saying, "Will I go further into
debt?" It does not say "Don't do it.", it meets

his cheque and immediately that happened, in our

submission, the law of estoppel comes in and

protects him against the Bank.

Lorimer 14 10/4/92

Tragic case, yes. Tragic because he was left

lamenting in October. But the tragedy occurred

because the Bank allowed him to go on, and that is

likely to be the story in other cases which have

existed between farmers and banks. The reason why

my client was said not to be accepted and not to be

reliable was because he did not keep records.

Banks keep records, apparently. They did not keep

records in this matter, actually, until September.

They did not keep any records about July, but

His Honour the trial judge found, in effect,

against our client in relation to that matter

because the Bank kept records and he did not.

I only mention that, not to try and upturn

that, but simply for the reason that farmers are

farmers; they do not keep records like banks do.

They are in that sort of position where they will

find it more difficult to protect themselves. So

we have the knowledge of the Bank going up to July,

we have the position of banker and customer, we

have the Bank saying it is a management decision,

knowing that he is likely to make it and knowing

that they have encouraged a finance company to give

him money by giving a very good opinion of his

creditworthiness, and knowing that once he puts the

cheque in he has decided to go ahead and act on the

basis that they are going to fund him.	Then they
continue to fund him.	Then they lie about it, as I

have submitted, and Your Honours, we would submit, and I do not want to take any further time because

I think I have made our submission clear, we would

submit that that adds up to estoppel by imprudence.

That falls well within the decision of the

High Court and it has been picked up in later

cases. That is the decision in Thompson v Palmer,

and I simply read Your Honours the passage:

or because his imprudence, where care was

required of him, was a proximate cause of the

other party's adopting and acting upon the

faith of the assumption; or because he

directly made representations upon which -

that is the other one. "Because his imprudence",

that is the Bank's imprudence, "where care was

required of" it, as it certainly was, "was a

proximate cause", as Your Honour Justice Gaudron

has pointed out, it does not have to be the

proximate cause, but we would submit it is in this

case, but it does not, it is "a proximate cause of

the other party's adopting and acting upon the

faith of the assumption".

For those reasons, Your Honours, we would ask

Your Honours to grant special leave to appeal.

Lorimer	15	10/4/92
MASON CJ:	Thank you, Mr Ellicott.	The Court need not

trouble you, Mr Jackson.

The case of estoppel which the applicant seeks

to raise involves a question or questions of law

which might, in an appropriate case, warrant the

grant of special leave to appeal. However, we are

not persuaded that this case is an appropriate

vehicle for the determination of any such question.

The applicant is confronted with concurrent

the applicant's case of estoppel, as well as to the case in contract which he sought to litigate.	adverse findings of fact which are detrimental to applicant made the assumption relied upon or that the Bank was aware or ought to have been aware that
he was acting to his detriment on the assumption that the Bank would fully fund option 2.

Furthermore, it seems that the case of

estoppel which the applicant now puts forward and

which was put forward in the Court of Appeal,

namely estoppel based on imprudence in creating an

assumption or in failing to correct a mistaken

assumption, was not litigated at the trial.

For those reasons, the application is refused.

MR JACKSON:	I make an application for costs, Your Honour.
MASON CJ:	You cannot oppose that, Mr Ellicott?

MR ELLICOTT:	No, Your Honour, not that it will do them any good, but I cannot oppose it, Your Honour.	They
must hammer in the last nail.

MASON CJ: That is a matter for Mr Jackson's client. The

application is refused with costs.

AT 10.16 AM THE MATTER WAS ADJOURNED SINE DIE

Lorimer 16 10/4/92