National Australia Bank Limited v Petit-Breuilh (No 3) - [2000] VSC 291

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION

Not Restricted

No. 5128 of 1997

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)	Plaintiff
v
JOSE PETIT-BREUILH	Defendant
SEGUNDO HUGHES	Secondnamed Defendant
PATRICK REYES	Thirdnamed Defendant
JUAN SANMARTIN	Fourthnamed Defendant
SERGIO SALAS	Fifthnamed Defendant
GUILLERMO GONZALEZ	Sixthnamed Defendant
and
MIGUEL AGLONY	Seventhnamed Defendant
LATIN AMERICAN SOCIAL AND SPORTING CLUB INCORPORATED LATIN AMERICAN SOCIAL AND SPORTING CO-OPERATIVE LIMITED Reg No G2902E	Firstnamed Third Party
	Secondnamed Third Party

---

JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2000
DATE OF JUDGMENT:	26 July 2000
CASE MAY BE CITED AS:	National Australia Bank v Petit-Breuilh (No. 3)
MEDIA NEUTRAL CITATION:	[2000] VSC 291

---

Practice and Procedure – Application for interlocutory costs Orders to be vacated and for new orders to be made – Circumstances under which the court will vacate an order – Circumstances under which the court will apply the ‘slip rule’.

General Rules of Procedure in Civil Proceedings 1996; Rules 1.14(2), 36.07

Arnett v Holloway [1960] VR 22
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
How v Winterton (1904) 111LT 763
In Re William Bruce, an Insolvent (1886) 12 VLR 696
JT Stratford & Son Ltd v Lindley & Ors (No 2) [1969] 3 All ER 1122
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Re Orders made by the Honourable Justice Balmford (unreported, decided on 16 September 1997)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke	Russell Kennedy
For the First, Fourth, Fifth, Sixth and Seventhnamed Defendants	Mr SV Palmer	Marshalls & Dent
For the Second and Thirdnamed Defendants	Mr PJ Pickering	Antonio Caamaño
For the Third Parties	Mr RA Arellano	Antonio Caamaño

HER HONOUR:

Introduction

The substantive issues in this matter were heard over fourteen days in July and August 1999. On 5 October 1999 I handed down a judgment containing certain findings and inviting submissions as to the form of the orders to be made and as to costs, and the matter was adjourned to that end. Submissions were made in due course and on 18 October 1999 I made the following orders:

1.The Plaintiff‘s claim is dismissed.
2.It is declared that the guarantee executed by the Defendants on 8 October 1992 in favour of the Plaintiff is void ab initio and is set aside.
3.The Third Party proceeding of the First, Second, Fourth, Fifth, Sixth and Seventhnamed Defendants is struck out.
4.The Plaintiff pay the costs of the Defendants, including all reserved costs and the costs of the First, Fourth, Fifth, Sixth and Seventhnamed Defendants in respect of the Third Party proceeding, such costs to include all costs of the Defendants except in so far as they are of an unreasonable amount or have been unreasonably incurred and so that, subject to the above exceptions, the Defendants will be completely indemnified by the Plaintiff for their costs.
5.The Plaintiff pay the Third Parties’ costs of the principal proceeding and of the Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading National Australia Bank Limited v Petit-Breuilh (No 3)

Details

AGLC: National Australia Bank Limited v Petit-Breuilh (No 3) [2000] VSC 291
Case: [2000] VSC 291
Decision Date: 26 July 2000

CaseChat Overview and Summary

In the case of National Australia Bank Limited v Petit-Breuilh (No 3), the dispute involved the applicant, National Australia Bank Limited, seeking interlocutory costs against the respondent, Petit-Breuilh. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the orders made by Justice Balmford regarding the interlocutory costs should be vacated and replaced with new orders. The court also had to consider the circumstances under which it would vacate an order and when it would apply the 'slip rule'.

The court examined the relevant legal principles, drawing on precedents such as Arnett v Holloway, Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd, How v Winterton, In Re William Bruce, an Insolvent, JT Stratford & Son Ltd v Lindley & Ors (No 2), Storey & Keers Pty Ltd v Johnstone, and the unreported case Re Orders made by the Honourable Justice Balmford. The court acknowledged the importance of adhering to procedural fairness and the principle that a party should not be prejudiced by an oversight or error in the court's process.

After considering the arguments and relevant authorities, the court determined that the orders made by Justice Balmford should indeed be vacated. The court concluded that the application of the 'slip rule' was appropriate in this case, and new orders would be made to reflect the correct legal position. The court emphasised the need for clarity and precision in procedural orders to avoid potential injustices and ensure fairness in the proceedings. The final orders were made to reflect the court's decision on the interlocutory costs and to address any procedural issues that had arisen.

Orders