Murray, L.o.a. v Macquarie Bank Ltd

[1991] FCA 929

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7 .

JUDGMENT No.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) No. QG159 of 1990
GENERAL DIVISION	)

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM CARLE

Second Respondent

AND BETWEEN:

THE MACOUARIE BANK LIMITED

Cross-Applicant

AND: LYNNE ORELLE ANGELA MURRAY

First Cross-Respondent

AND: JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN:

JOHN ALEXANDER BAKER

Cross-Applicant

AND: THE MACOUARIE BANK LIMITED

First Cross-Respondent

AND:  RAYMOND WILLIAM CARLE

11 1UN 1992 Second Cross-Respondent

MINUTES OF ORDER

August 1991.

JUDGE MAKING ORDER:	Pincus J.
DATE OF ORDER:	20 August 1991
WHERE MADE:	Brisbane
THE COURT DIRECTS THAT:

1.    The respondents (the "bank" and "Carle" as defined in the statement of claim) make further discovery on affidavit of the documents described in the notice of motion filed herein on the 23rd day of July 1991 on or before the 27th day of August 1991.

2.   The said respondents give inspection of the further documents discovered on or before the 3rd day of September 1991.

3 .    The said respondents file an amended defence to the further amended statement of claim on or before the 27th day of

4 .    The said respondents file a defence to the cross-claim of Baker on or before 4 . 0 0 pm on the 27th day of August 1991.

5.    Baker file his reply (if any) on or before 4 .00 pm on the third day of September 1991.

6.    Baker and the said respondents make mutual discovery on affidavit on or before the 5th day of September 1991.

7.   All parties give and complete inspection of documents discovered on or before the 7th day of September 1991.

NOTE:  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 No. QG159 of 1990
GENERAL DIVISION	1

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM CARLE

Second Respondent

AND BETWEEN:

THE MACOUARIE BANK LIMITED

Cross-Applicant

AND: LYNNE ORELLE ANGELA MURRAY

First Cross-Respondent

AND: JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN:

JOHN ALEXANDER BAKER

Cross-Applicant

AND: THE MACOUARIE BANK LIMITED

First Cross-Respondent

AND: RAYMOND WILLIAM CARLE

Second Cross-Respondent

-:  Pincus J.

M: Brisbane

DATE :

- 20 August 1991

EX TEMPORE REASONS FOR JUDGMENT

When this case was last before the Court a week ago, a question arose as to whether any of the issues should be severed and I reserved that point. Severance might be achieved, for example, by striking out parts of the pleadings, or by requiring one or more of the issues to be determined separately. It is convenient to begin with the most recent version of the statement of claim filed on 15 August 1991. It complains the Macquarie Bank's conduct under three headings.

Firstly, the applicant says she was misled in October and November of 1988 in connection with the then proposed application for a loan. It is part of the applicant's case that

Mr. Carle, as an officer of the Macquarie Bank ("the bank") gave

the applicant assurances as to the future of the solicitors' firm which, on the applicant's case, was going to be the ultimate source of moneys for repayment. The second aspect of the case raised is that in May 1989, some six months latex, Carle gave bad advice about the applicant's then proposed trip overseas. The

third aspect is that in October 1989, Carle misled the applicant in connection with a then proposed guarantee of a loan to Mr. Baker. That loan was for the purpose of acquiring the business of Ryan and Archer Coutts.

In Baker's cross-claim, filed on 8 August, no complaint in which, it is said, Carle induced Baker to take part early in	is made about events in 1988. His first claim concerns a loan
February 1989. It involved a sum of $0.5 million. Baker's second claim relates to an issue like that raised in the applicant's second claim, namely, alleged bad advice by Carle as to a trip overseas. Then Baker's third claim concerns bad advice relating to the purchase of the Ryan and Archer Coutts practice.
It can be seen, then, that the pleadings are concerned with four separate groups of transactions. Of those, one, the Ryan and Archer Coutts transaction, seems unconnected with the others, except as to the persons who took part in it. The resolution of all these questions seems likely to involve a lengthy and complex trial.
The bank obtained judgment in the sum of $235,000 against the applicant on 7 May 1991, but that was set aside on 6 August. On 13 August I gave a temporary injunction against the bank restraining it from exercising its power of sale or entering into possession of property which the applicant had mortgaged to the bank until 4 pm today. I am about to hear an application for an extension of that injunction. If an extension is granted, it would become desirable to resolve the disputes between the parties fairly promptly in an endeavour to avoid an outcome which I would think to be unfortunate, namely, that the granting of an injunction might cause permanent and irrecoverable damage to the bank.
This consideration tends in favour of severance of some of the accounts between the applicant and the bank until all issues, but it will not become possible to ascertain the state
three of her claims are determined. If, for example, the Ryan and Archer Coutts matter was severed, judgment in respect of the other issues would still leave uncertain the amount ultimately due between the applicant and the bank.
It therefore appears to me to be impracticable to sever any of the applicant's claims from any other at this stage, or to sever any of the claims made by Baker which correspondent to the applicant's claims. The only claim made by Baker which does not so correspond is, as I have pointed out, that relating to the
$0.5 million loan in February 1989. However, it is not easily
severable because it has a fairly close factual connection with the other claims.
I therefore do not propose to make any order for severance at this stage and all the claims may be pursued. At the trial it may well prove to be convenient to deal with the Ryan and Archer Coutts matter separately and after the hearing relating to the other issues. The trial may otherwise be difficult to handle.
In the result, I will not strike out any claims or at present order that determination of any of the claims made by the applicant or Baker be deferred until the determination of any other such claims.

I will make orders in terms of the draft - paragraphs

1 to 8 - with the exception of 3 which has already been made, and

4, 5, 6, 7 and 8 will have to be re-numbered.

I certify that this and the preceding three

(3) pages are a true copy of the reasons for

judgment herein of his Honour Mr. Justice

Pincus. ccLL----

Associate

Date: 20 August 1991

Counsel for the applicant	Mr. B. J. Clarke
instructed by	Hill & Taylor
Counsel for the first and second
respondents	Mr. A. J. H. Morris
instructed by	Clarke & Kann
Counsel for the second cross-
respondents	Mr. M. J. Hains
instructed by	Lynch & Company
Date of Hearing	20 August 1991