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Papandony v Citibank

Papandony v Citibank

Case [2002] NSWSC 678 2 August 2002

Appeal

Jurisdiction

New Trial

Discovery & Disclosure

Civil Litigation & Procedure

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CITATION: Papandony and Another v Citibank [2002] NSWSC 678

FILE NUMBER(S): SC 50148/01

HEARING DATE(S): 27/06/02,01/07/02,02/07/02

JUDGMENT DATE: 2 August 2002

PARTIES :

Citibank Ltd - Applicant
Steven Papandony - 1st Respondent
Gannemon Pty Ltd - 2nd Respondent

JUDGMENT OF: Gzell J

COUNSEL : Mr P M Wood for the Applicant
Mr B R McClintock SC with Ms Kate Traill for the Respondents

SOLICITORS: Coudert Brothers Solicitors and International Attorneys for the Applicant
Christopher Levingston & Associates Solicitors for the Respondents

CATCHWORDS: NEW TRIAL - In general and particular grounds- Application to re-open case after publication of reasons but before entry of judgment - Leave to adduce further evidence - Leave to cross-examine witness not - cross-examined at hearing - Failure of successful party to discover documents - Relevant principles

LEGISLATION CITED: Supreme Court Rules

CASES CITED: Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 at 684
Autodesk Inc v Dyason (No 2) (1992-1993) 176 CLR 300 at 301-302, 308, 317
Urban Transport Authority v Nweiser (1992) 28 NSWLR 471 at 478
Smith v NSW Bar Association (1992) 176 CLR 256 at 266
Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444
McCann v Parsons (1954) 93 CLR 418
Orr v Holmes (1948) 76 CLR 632
CDJ v VAJ (1998) 197 CLR 172
Wall v Timbertown Community Enterprises Ltd (in liq) [2002] NSWCA 162 at par 24
Tamas v Streimer, unreported, Court of Appeal, 10 July 1981
Twenty-First Australia Inc v Shade [1998] NSWSC 325
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) [1998] NSWSC 578
Commonwelath Bank of Australia v Quade (1991) 178 CLR 134

DECISION: Application dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

GZELL J

FRIDAY 2 AUGUST 2002

50148/01 STEVEN PAPANDONY AND ANOTHER v CITIBANK LIMITED

JUDGMENT

Application to re-open

1 I published my reasons for judgment in this matter on 14 May 2002. Judgment has not been entered. Central to my reasons were findings that the drawing of the cheques in question were procured by the fraud of Brachmanis and there were no concluded contracts with the companies Brachmanis purported to represent. The applicant/defendant has retained different solicitors and counsel from those representing it at the trial. On 27 June 2002, I gave leave to the applicant to file in court a notice of motion seeking leave to re-open the issues of fraud and concluded contracts in order to recall or supplement the judgment. To that end, the applicant seeks leave to tender a number of documents, to cross-examine the first respondent on the issues of fraud and concluded contracts and seeks an order that the respondents serve a verified list of documents confined to those issues.

2 The Supreme Court Rules 1970, Pt 40 r 9(1) enables me to set aside or vary a judgment when notice of motion is filed before entry of judgment. However, the public interest in maintaining the finality of litigation means that it is only in the extremely…

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 Papandony v Citibank

Details

AGLC: Papandony v Citibank [2002] NSWSC 678
Case: [2002] NSWSC 678
Decision Date: 2 August 2002

CaseChat Overview and Summary

The applicants, Papandony, sought leave to re-open their case for a new trial against the respondent, Citibank. The dispute arose from a failed investment in an oil exploration project. The applicants claimed that Citibank, as their financial advisor, failed to properly disclose the risks associated with the investment. The case was heard in the Supreme Court of New South Wales. The applicants sought a new trial on the grounds that Citibank had failed to discover and disclose certain documents relevant to the case. They also sought leave to adduce further evidence and to cross-examine a witness who was not cross-examined at the original hearing.

The legal issues before the court were whether the applicants had established grounds for a new trial and whether leave should be granted to adduce further evidence and to cross-examine the additional witness. The court noted that the decision to grant a new trial was discretionary and that the applicants had to establish that the failure to discover the documents was not due to their own want of diligence. The court also considered whether the additional evidence and cross-examination of the witness would be relevant and necessary to the determination of the case.

The court found that the applicants had established grounds for a new trial as the failure to discover the documents was not due to their own want of diligence. The court also found that the additional evidence and cross-examination of the witness would be relevant and necessary to the determination of the case. The court granted leave for a new trial and for the applicants to adduce further evidence and to cross-examine the additional witness. The court noted that the successful party, Citibank, had a responsibility to discover and disclose all relevant documents and that failure to do so could result in a new trial.

The final orders of the court were that leave be granted for a new trial, for the applicants to adduce further evidence, and to cross-examine the additional witness. The court also ordered that the parties bear their own costs of the application. The court emphasised the importance of full disclosure and the need for parties to take reasonable steps to discover and disclose all relevant documents. The case serves as a reminder to financial advisors of their duty to disclose all material risks to their clients and the consequences of failing to do so.

Orders