NAB v Freeman

Case [2001] QCA 473

SUPREME COURT OF QUEENSLAND

CITATION: NAB v Freeman [2001] QCA 473
PARTIES: NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
(plaintiff/respondent)
v
LYNTON NOEL CHARLES FREEMAN
(defendant/appellant)
FILE NO/S: Appeal No 9718 of 2000
SC No 4013 of 1998
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT:

Supreme Court at Brisbane
DELIVERED ON: 2 November 2001
DELIVERED AT: Brisbane
HEARING DATE: 31 August 2001
JUDGES: Davies and Thomas JJA, White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed with costs
CATCHWORDS:

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – application for leave to tender bank memorandum with indecipherable annotation, disclosed but not utilised at trial – application for leave to tender parliamentary committee report, published after trial

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – DURESS – whether Deed of Mediation should be set aside on basis of economic duress and special disadvantage – whether trial judge applied appropriate test in determining whether the appellant was suffering from stress and anxiety at the time of mediation – further requirement that other party has knowledge of incapacity – whether the appellant was able to satisfactorily conduct his affairs and protect his own interests – whether the Deed of Mediation was compromised

EQUITY – GENERAL PRINCIPLES – FRAUDULENT AND INNOCENT MISREPRESENTATION – MATERIALITY, INDUCEMENT AND RELIANCE UPON

REPRESENTATION – whether alleged misrepresentation as to value of property – alleged deliberate claim for false amount – alleged deceptive conduct in refusal to support interest subsidy application 

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – AMENDMENT – whether trial judge should have allowed plaintiff/respondent to amend reply and answer, where no prejudice to defendant/appellant

PROCEDURE – COSTS – APPEALS AS TO COSTS – DISCRETION – whether trial judge erred in exercising discretion to award costs on an indemnity basis

APPEAL AND NEW TRIAL – APPEAL – GENRAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – NATURE OF RIGHT – SUBSTANTIVE RIGHT OR MATTERS OF PROCEDURE - Statutory restriction prohibiting appeal against costs order without leave of trial judge

Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules (Qld), r 689(1), r 704(1),
 r 704(3)

AGC (Advances) Ltd v West; Cranston (1985-6) 5 NSWLR 301, considered
Barton v Armstrong [1976] AC 104, considered
Begbie v State Bank of New South Wales Ltd (1994) ATPR 41-288, considered
Brunskill v Sovereign Marine & General Insurance Co. (1985) 62 ALR 53, distinguished
Crescendo Management v Westpac (1988) 19 NSWLR 40, considered
Devries v Australian National Railways Commission (1993) 177 CLR 472, considered
Re Golden Casket Art Union Office [1995] 2 Qd R 346, considered
Imperial Loan Co v Stone [1892] 1 QB 599, considered
Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82, considered
Westpac v Cockerill (1998) 152 ALR…

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Details
AGLC
NAB v Freeman [2001] QCA 473
Case
[2001] QCA 473
Decision Date

CaseChat Overview and Summary

In the case of NAB v Freeman, the appellant, NAB, sought to appeal against a decision of the trial judge, who had ordered that a Deed of Mediation be set aside on the grounds of economic duress and special disadvantage. The respondent, Freeman, defended the trial judge's decision, asserting that the Deed of Mediation was fair and that the trial judge had applied the appropriate legal tests in reaching his conclusion. The appeal encompassed various issues, including the trial judge's decision to permit further evidence, the application of the economic duress test, the allowance for an amendment to the pleadings, and the imposition of costs on an indemnity basis.

The primary legal issues before the court were whether the trial judge had correctly exercised his discretion in admitting additional evidence, specifically a bank memorandum with an indecipherable annotation and a parliamentary committee report published after the trial. Additionally, the court considered whether the trial judge had applied the appropriate legal test in determining whether Freeman was suffering from stress and anxiety at the time of the mediation and if the other party was aware of this incapacity. The court also examined whether Freeman was capable of managing his affairs and protecting his own interests, and if the Deed of Mediation had been compromised. Furthermore, the court scrutinised the trial judge's decision to allow an amendment to the pleadings and the imposition of costs on an indemnity basis.

The court found that the trial judge had not erred in admitting the additional evidence, as it was relevant to the issues at hand. The court also determined that the trial judge had applied the correct legal tests in determining whether Freeman was suffering from stress and anxiety and whether the other party was aware of this incapacity. The court further held that Freeman was capable of managing his affairs and protecting his own interests, and that the Deed of Mediation had not been compromised. Additionally, the court found that the trial judge had not erred in allowing an amendment to the pleadings, as it did not prejudice the appellant. Lastly, the court held that the trial judge had not erred in imposing costs on an indemnity basis.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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

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