Rich v Westpac Banking Corporation

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Rich v Westpac Banking Corporation [2014] NSWCA 136
Hearing dates:18 March 2014
Decision date: 06 May 2014
Before: Ward JA at [1];
Emmett JA at [82];
Gleeson JA at [100]
Decision:

1. Application for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - general principles - interference with discretion of court below - interlocutory orders - joinder and addition of parties - whether applicant had established arguable defence to proceedings brought by plaintiff
APPEAL - practice and procedure - general principles - admission of fresh evidence - whether evidence could have been obtained for use at first instance
APPEAL - practice and procedure - when appeal lies by leave of court - interlocutory orders and judgments
Legislation Cited: Australian Securities & Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005
Competition and Consumer Act 2010 (Cth)
Contracts Review Act 1980
Family Law Act 1975 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Adams v Bank of New South Wales [1984] 1 NSWLR 285
Akins v National Australia Bank (1994) 34 NSWLR 155
Bathurst City Council v PWC Properties Pty Limited [1998] HCA 59; (1998) 195 CLR 566
Be Financial Pty Ltd v Das [2012] NSWCA 164
Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Disctronics Ltd v Edmonds [2002] VSC 454
Dobbs v The National Bank of Australasia Ltd [1935] HCA 49; (1935) 53 CLR 643
Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; (2006) 156 FCR 53; (2006) 236 ALR 499
Estoril Investments Pty Limited v Westpac Banking Corporation (1993) 6 BPR 13,146
Fisher v Fisher (No. 2) [1986] FLC 91-767
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Hammond v JP Morgan Trust Australia Ltd (2012) NSWCA 295
House v R [1936] HCA 40; (1936) 55 CLR 499
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Oayda v Mercantile Mutual Life Insurance Co Ltd (Family…
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Details
Case
[2014] NSWCA 136
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal an interlocutory order made by the court below. The applicant, Rich, sought to join Westpac Banking Corporation as a defendant in proceedings brought against him by a plaintiff. Rich contended that Westpac had acted in concert with the plaintiff and that he had an arguable defence to the plaintiff's claims, which involved allegations of fraud.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, and if so, whether the primary judge erred in refusing to grant leave to join Westpac as a defendant. This involved considering whether Rich had established an arguable defence and whether the joinder of Westpac was necessary for the determination of all questions in the proceedings. The Court also considered whether fresh evidence sought to be adduced on appeal could have been obtained with reasonable diligence for use at first instance.

The Court of Appeal found that the primary judge had not erred in refusing leave to join Westpac. It was held that Rich had not demonstrated an arguable defence to the plaintiff's claims, nor had he shown that the joinder of Westpac was necessary for the proper determination of the proceedings. The Court also determined that the fresh evidence sought to be adduced on appeal could have been obtained earlier and therefore refused its admission.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

1. Application for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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