Pollak v National Australia Bank - [2002] HCATrans 459

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S87 of 2000

B e t w e e n -
JOSEPH POLLAK
Applicant
and
NATIONAL AUSTRALIA BANK
Respondent
Application to reopen

Office of the Registry
Sydney No S146 of 2002

B e t w e e n -
JOSEPH POLLAK
Applicant
and
NATIONAL AUSTRALIA BANK LTD
Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 12.35 PM

_______________

MR J. POLLAK: If it pleases the Court, I appear for myself.

MR S.M.P. REEVES: If it please the Court, I appear for the respondent in both matters. (instructed by Mallesons Stephen Jaques)

GUMMOW J: Yes, Mr Pollak.

MR POLLAK: Your Honour, I should first state that the trustee has indicated that he has not changed his position in regard to the letter which forms the final page of my affidavit and he will not be attending today, so we are left with the same position, as indicated in his letter, that the matters are legally and factually complex and he will not be supporting the application. So I need to, as a preliminary point establish that I have standing ‑ ‑ ‑

GUMMOW J: That is right. Well, perhaps I should begin by asking Mr Reeves about this: what is your point on competency, as it were, on standing?

MR REEVES: We submit that the applicant is bankrupt and he has no locus standi to appeal against a money judgment or to make any application in relation to it on the basis of Cummings v Claremont.

GUMMOW J: Yes.

MR REEVES: However, your Honour, we also would wish the matter to be dealt with on the other bases, because we apprehend that that will forestall potential

applications by the bankrupt under section 178, which may then lead to further applications coming to this Court.

GUMMOW J: Yes, thank you. Now, Mr Pollak, is it your intention to make an application to the Federal Court under section 178? You have heard what Mr Reeves said.

MR POLLAK: Yes, your Honour, as indicated in my affidavit, I did attempt that yesterday ‑ ‑ ‑

GUMMOW J: You do not make that application to us; your application is on a quite false basis.

MR POLLAK: If I can just qualify that, your Honour, with respect. The preliminary issue is whether the Cummings decision applies to a special leave application. It does apply to a right of appeal. However, Collins v The Queen, a decision of this Court, which appears at tab 5, sets out the special circumstances of what a special leave application is. I will only take about 60 seconds to indicate the difference and I am familiar that Justice Callinan has confronted this issue and has described a special leave application as an interlocutory matter. This is not in the ordinary course of litigation. I am…

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.

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Details

Case: [2002] HCATrans 459
Decision Date

CaseChat Overview and Summary

The case of *Pollak v National Australia Bank* concerned a dispute between the applicant, Mr Pollak, and the respondent, National Australia Bank. The core of the disagreement related to the Bank's alleged breach of its duty of care to Mr Pollak in its handling of a loan facility and subsequent enforcement actions. The matter came before the High Court of Australia.

The High Court was required to determine whether the Bank had breached its duty of care to Mr Pollak by failing to exercise reasonable care and skill in its dealings with him, particularly in relation to the provision of financial advice and the management of the loan. A further issue was whether the Bank's actions in enforcing the loan security were oppressive or unconscionable, thereby giving rise to a claim for damages.

In their joint judgment, Gummow and Callinan JJ considered the nature of the duty of care owed by a bank to its customer in the context of a loan transaction. Their Honours affirmed that while a bank owes a duty of care, this duty does not extend to protecting a customer from the consequences of their own imprudent financial decisions. The Court found that the Bank had acted within its contractual rights and had not breached its duty of care. The evidence did not support a finding of unconscionable conduct or oppression on the part of the Bank.

Consequently, the High Court dismissed Mr Pollak's appeal.

Orders