Robinson v Westpac Banking Corporation

[1993] HCATrans 323

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl02 of 1993

B e t w e e n -

DONALD ROBINSON

Applicant

and -

WESTPAC BANKING CORPORATION

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

Robinson 1 26/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 11.58 AM

Copyright in the High Court of Australia

MR J.M. IRELAND, QC: If the Court pleases, I appear with my

learned friend, MR R.J. WEBB, on behalf of the

applicant. (instructed by Gadens Ridgeway)

MR S.D. RARES: If the Court pleases, I appear with my

learned friend, MR T.D. CASTLE, for the respondent.

(instructed by Henry Davis York)

MASON CJ: Yes, Mr Ireland.

MR IRELAND:  Your Honours, may we supply an outline of the

submissions. Your Honours will have seen that this

is an application for special leave raising for

consideration the extent of bankers' duty of

disclosure to an intended surety. Mr Robinson, who

is the applicant, succeeded at the trial. He was

relieved of his liability under a guarantee which
he gave to the respondent Bank in 1981, and the

Court of Appeal by majority reversed the result

upholding the Bank's claim under its guarantee.

The result is that two of the judges below were in

favour of the proposition we seek to advance here

and two were not. Your Honours, the reasoning of

the majority in the Court of Appeal finds
expression in the judgment of Mr Justice Clarke,

with whom Mr Justice Handley agreed.

The relevant facts were that Mr Robinson, the

applicant, was interested in purchasing shares in a

company called Brass Imports, which was an existing

customer of the Bank, and finance was to be
provided to him by the Bank for the purchase of
those shares. It was proposed that Mr Robinson and

his partner, Mr Odewahn, would guarantee the

company's borrowings from the Bank.

These shares were owned by Mr and Mrs Carroll.

Shortly before settlement on Friday, 17 July, the

Bank manager received a visit from Mrs Carroll and

she disclosed certain matters to him which were
allegations of fraud against her husband.	They are
summarized, Your Honours, at page 88 of the

application book, and related to misappropriation

of the assets of the company which was about to be

purchased, and alterations to company records.

On Monday, 20 July, which was the next working

day, there was a meeting as the Bank knew between

Mr Robinson and his partner with the Carrolls to

consummate the purchase. They did not reach

resolution on that day but did on the following day

which was Tuesday, 21 July 1981, and the purchase

of shares was then concluded with funds made

available by the Bank on loan to Mr Robinson. On

that same day Mr Robinson and Mr Odewahn signed the

guarantees in question.

Robinson 2 26/10/93

The trial judge found that the Bank manager

deliberately kept silent about the fraud

allegations and held that the Bank should have

disclosed them to Mr Robinson and to Mr Odewahn

prior to their execution of the guarantee. In

essence, the trial judge concluded that the Bank had failed in breach of its duty to disclose the fraud.

In the Court of Appeal - and this appears at

page 88 of the materials - Mr Justice Clarke

reconsidered the question whether the Bank owed a

duty of disclosure of the fraud allegations to

Mr Robinson before he signed his guarantee.

His Honour accepted that the fraud facts were of an

unusual nature, and he accepted the view of the
trial judge that the fraud allegations constituted

something which was very unusual in the transaction

under which Mr Robinson and Mr Odewahn were

purchasing the shares in the company.	But
crucially, in the Court of Appeal,

Mr Justice Clarke held that the unusual nature of the fraud allegations did not, in his opinion, bear on the question whether there was a duty to

disclose them -

except to the extent -

His Honour says, and this is page 88 point 9 -

perhaps, that anything said or done by Westpac

suggested that those events had not occurred.

Your Honours, this Court has laid down the test

relating to a bank's duty of disclosure to an

intending guarantor, and we have set out the

passage at page 3 of the written submissions, that

is, a bank which takes a guarantee is only bound to

disclose to the intending surety anything which has

taken place between the bank and the principal

debtor which was not naturally to be expected, or

necessity for disclosure goes only to the extent of	as put another way in Lloyds Bank v Harrison, the
requiring it where there are some unusual features
in the particular transaction relating to the particular account which is to be guaranteed.

MASON CJ:  Can I take you to the top of page 89 where

Mr Justice Clarke says:

The test is, as I have endeavoured to point

out, whether Westpac's silence relating to

these matters amounted to a misrepresentation.

Now, where has Mr Justice Clarke pointed that out?

Is he referring only to the previous sentence?

Robinson 3 26/10/93

MR IRELAND:  Your Honour, I think it is page 80 at line 4

His Honour is harking back to. His Honour goes

through these authorities and culminates at line 4

on page 80:

These authorities all support the view that

the rule concerning contracts of guarantee

stands apart ..... only if concealment of those

facts would otherwise misrepresent the

transaction.

I think that is the passage His Honour has in mind.

What happens in this analysis, in our

respectful submission, is this: His Honour

recognizes that failure to disclose materially

unusual matters will constitute misrepresentation

for the reason that Mr Justice Gibbs explained in

Amadio's case, which we have extracted at page 4 of

these notes; but then goes on, having stated that

test, to engraft upon it a qualification, that
qualification being that the duty to speak on the

part of the bank will only arise if there is some

super added, as it were, misrepresentation.

His Honour then says on the facts there was not.

In our respectful submission, the principle is

perverted by the qualification, that is to say,

that there will be cases where unusual matters rest

in the private knowledge of the bank, and the law

dictates that they be revealed. The mere failure

to reveal those matters, material and unusual,

per se, relieves the guarantor from his

obligations. So what has happened in this case,

Your Honour, is that His Honour has, in our

respectful submission, engrafted this qualification

which undermines the principle, and that is a

matter of general importance and of serious

injustice upon which we found this application for

special leave.

MASON CJ: Yes, Mr Rares.
MR RARES:	In our submission, the Court of Appeal was

correct and Mr Justice Clarke simply applied the principle which this Court has developed both in

Goodwin and in Amadio and Behan v Obelon.

Your Honours, what Mr Justice Clarke did was

to set out in the judgment from the bottom of

page 76 the cases in which the principle was

developed, Lord Campbell's speech in Hamilton v

Watson, and fixed on the question that must be

asked, namely, whether there is something in the

transaction between the bank and the customer which

is unusual and needs to be disclosed. In this case

there was absolutely nothing, as His Honour found,

Robinson 4 26/10/93

unusual in the transaction. There was no

difference in obligation imposed on the principal

debtor; there was no difference in what was being
guaranteed, and that is why these cases deal

with - and one can see it in the extract from

Lord Campbell's speech at page 77, lines 1 and

following:

"I should think that this might be considered as the criterion whether the disclosure ought

to be made voluntarily, namely, whether there

is anything that might not naturally be

expected to take place between the parties who
are concerned in the transaction, that is,
whether there be a contract between the debtor

and the creditor, to the effect that his

position shall be different from that which

the surety might naturally expect; and, if

so, the surety is to see whether that is

disclosed to him. But if there be nothing

which might not naturally take place between

these parties, then, if the surety would guard
against particular perils, he must put the

question, and he must gain the information

which he requires."

Goodwin was to like effect, and Your Honours can

see it in the passage cited by my learned friend at

lines 13 to 15:

"The necessity for disclosure only goes to the
extent of requiring it where there are some

unusual features in the particular case

relating to the particular account which is to

be guaranteed."

TOOHEY J:  What does that mean, Mr Rares? Does that exclude

consideration of the financial standing of the

customer?

MR RARES: Generally so, because the courts have said that

one expects the financial standing of the customer

to be such that the bank will ordinarily require a

guarantee because of it. But in this case there

was no evidence - and the second ground we say

special leave ought to be refused - that any

representation made by the Bank manager was false,

and the majority so found in the Court of Appeal.

There was nothing to falsify the representation.

The representation was: it is a very good

business; it needs an injection of capital. The

evidence in the case was that no injection of

capital was made and the business, as it were, fell

over, Mr Robinson having said he would inject the

capital when he went to the Bank and presented a

letter. But there was no attempt to prove any of

the allegations Mrs Carroll made which

Robinson 26/10/93

characterizes the fraud allegations. There was no

attempt to prove they were, in fact, true.

So you had a situation in which what my

learned friend is putting and what the trial judge

found was that if the wife, who is one of two

directors and in a matrimonial dispute, comes into

the Bank manager and says, "My husband is knocking
money off from the company, not taking it out of
the account, but going around to creditors and

asking them to pay him rather than pay the

company", the Bank manager had a duty to disclose

the fact of that allegation, not the fact that that

had happened because there was no evidence that it,

in fact, had, but the fact of the allegation. What my learned friend's argument seeks to do is to turn

the principle around. That is why the cases say

you look at the transaction that is to be

guaranteed, and whether there are any unusual

features in that.

This Court in Amadio's case looked at that

through the judgments delivered by the

Chief Justice Sir Harry Gibbs. Your Honour the

present Chief Justice, Sir Anthony Mason, spoke to

similar effect in Your Honour's judgment and, with

respect, Your Honour Mr Justice Dawson who

dissented, in Amadio applied the same principle.

We can hand up a copy of Amadio, 151 CLR 447, and I

can take Your Honours to those passages where this

was considered. In the Chief Justice's judgment,

His Honour at page 454 refers to Hamilton v Watson

and sets out the passage that Mr Justice Clarke

sets out, and then develops the line of authority

that Mr Justice Clarke also sets out, saying at

about point 5 on page 455:

The reason why a creditor is bound to reveal

to an intending surety anything in the

transaction between himself and the debtor

which the surety would expect not to exist is

that a failure to make disclosure in those

circumstances would amount to an implied

representation that the thing does not exist.

MASON CJ: But you have missed out, have you not, what

preceded that statement, which is generally taken

as one of the classic statements of the duty:

In other words, a bank which takes a guarantee

"is only bound to disclose to the intending

surety anything which has taken place between

the bank and the principal debtor "which was
not naturally to be expected", or as it was

put ..... "the necessity for disclosure only

goes to the extent of requiring it where there

are some unusual features in the particular

Robinson 6 26/10/93

case relating to the particular account which

is to be guaranteed".

MR RARES:  I was not intending to leave that out,

Your Honour. It had been covered, I thought, when

I referred back to Goodwin's case before.

MASON CJ: Yes, but it did seem to me that Mr Justice Clarke

in the Court of Appeal was founding himself on that

statement because at page 88 before the passage

referred to by Mr Ireland, His Honour refers to the

various things that Mrs Carroll had said to the

Bank manager, and then at about line 21

Mr Justice Clarke said:

His Honour thought it did for those matters

constituted something which was very unusual

in a transaction of this nature. That is, a

transaction pursuant to which Robinson and

Odewahn would purchase the shares in Brass
Imports, Westpac's customer, and thereafter

undertake responsibilities as guarantors to

Westpac ..... ! would accept that these facts

are of an unusual nature.

Now, is that not a finding of the trial judge

confirmed by Mr Justice Clarke that brings the case

squarely within that sentence in Commercial Bank of

Australia v Amadio?

MR RARES:  Your Honours, we would submit that properly

understood, and when one analyses what was said in

Goodwin's case and in Amadio, that that goes back

to the question as to what is being guaranteed, and

the reason for disclosure is that there is

something unusual in the contract between the

creditor and the principal debtor. It is not

something unusual within the internal organization

of a vendor of a business or another party to the

transaction.

TOOHEY J:  It may not be in many cases simply because the

facts are different, and that would, I think,

distinguish this case, or is capable of

distinguishing this case from a number of those

that are referred to in the judgments.

MR RARES:  Of course, this discussion - if I am wrong and my

submissions are not adequate to dispose of special

leave - proceeds upon the basis that - and really

it is obiter, because Mr Justice Clarke first finds

there was no evidence of falsity - and absent that,

this becomes an academic question.	In our
submission, what - - -

MASON CJ:  Can I come back to the point I raised with you.

Are you suggesting that when Mr Justice Clarke said

Robinson 7 26/10/93

these facts are of an unusual nature, he was really
saying, "Well, these facts are of an unusual
nature, but they are not facts that are connected

with the particular account which is to be

guaranteed"? Is that what you are saying?

MR RARES:	Yes, Your Honour.
MASON CJ:	It is a pity he did not say it in those terms,

Mr Rares.

MR RARES:  That may be, Your Honour, but really on the next

page His Honour then develops it:

The test is, as I have endeavoured to point

out, whether Westpac's silence relating to

these matters amounted to a misrepresentation.

The reason that His Honour explained that that was

the foundation of the test was because the

consequence of the remedy of rescission followed

upon the normal incident of an innocent

misrepresentation to avoid a guarantee remedy,

namely, there has to be some sort of

misrepresentation.	What His Honour then went on to
point out was:

That would occur only if Robinson would

naturally have assumed from Westpac's silence

that a particular state of affairs existed

which these revelations falsified.

His Honour develops the point about the bank

accounts. There is nothing falsified about the

bank accounts. The other question, of course,

Your Honour, is when one looks at these fraud

allegations one goes back to the finding of the

trial judge at page 36 of the book where His Honour

disposed of the claim by Mr Robinson which is not
the subject of an application by my learned friend,

that he had a claim for damages for negligent

misrepresentation, which I think is a misstatement.

In this case, the judge made findings

demonstrating, in our respectful submission, that

there is no occasion for the court to avoid a

guarantee having regard to these unusual
circumstances, because the trial judge says at

point 2 on page 36:

Whilst I accept that Mr Robinson relied upon

what Mr Groves -

the Bank manager -

told him, and regarded it as significant, there are in my view intractable problems

involved in the plaintiffs' case: on the

Robinson	26/10/93 evidence, it is impossible to disentangle the
reliance on what Mr Groves said at the
beginning of the transaction from the reliance
upon what Messrs Dawson and Odewahn later told
Mr Robinson -

they were his accountant and his business partner

who had done all the investigations, neither of

whom was called, and they were available at the

trial. Mr Robinson had had a stroke. His memory

was affected by the stroke, and he was the only

witness called for the plaintiff.	Then His Honour
goes on to point out, it is -

impossible to say whether the decision to buy

the company was still influenced by the

original advice of Mr Groves, and if so to

what extent, impossible to say what it was

that was wrong with the financial affairs of
the company, which was obscured by the

statement of Mr Groves, and impossible to say

what loss flowed from the statement of

Mr Groves.

So, in our respectful submission, when one has all

those findings of fact, the Court of Appeal were

entitled to come to the conclusion that there was

an inconsistency between the trial judge's findings

of inducement to enter into the guarantee which

enabled Mr Robinson to avoid it, even assuming

against me that there were unusual features that

brought it within the rule in Goodwin's case.

His Honour then said, "Well, you can't tell

whether there was any causation at all", and the
majority in the Court of Appeal fixed on those
findings and said, "Well, there are irreconcilable

findings between the two matters by the trial

judge", and after Mr Justice Clarke reviews the

evidence His Honour comes to the conclusion that

the reasons for disposing of the negligent

misstatement claim were also reasons to dispose of

the claim to rescind the guarantee. That is why

Mr Justice Clarke's analysis is, in our submission,

right and why Sir Harry Gibbs' analysis in Amadio's

case is right, that one looks to whatever it is

that is not disclosed as being a misrepresentation,

because otherwise the unusual nature of the facts

one has to ask what takes it to the point of the

court intervening and saying you can avoid. In our

submission, the analysis that was undertaken in Amadio's case by those members of the Court who dealt with this point demonstrated that the view

put forward by Mr Justice Clarke was correct, and

is the view that has come out of the history of the

cases.

Robinson 9 26/10/93

The rule as stated in Goodwin's case, of course, came in a case where the unusual

transaction said to entitle the guarantor to avoid

the guarantee was a failure to disclose the

existence of another guarantee signed by

Mrs Goodwin's son whose account she was then

guaranteeing. The Court said that was not an

unusual circumstance. It was naturally to be

expected. Here, all you had was these allegations

of fraud which were made and were made in a context

where if the Bank disclosed them and they were

untrue and the contract went off, the Bank would

have a liability to its previous customers for

breach of confidence and, of course, for

defamation.

It is a bit like the rumour cases in

defamation. You have the fraud squad investigating

somebody. You cannot impute guilt. You have one

director come in and say this in a context where

two months have gone by and Mr Robinson has made
his own inquiries, negotiated the reduction of the

purchase price from $142,000 to $73,000 with a

special provision to reduce it further because of

discrepancies they have found. His business

partner has been talking about finding stock

missing in the warehouse and the like.	So they are
well alive to this.	They have a solicitor acting

for them on the purchase. He is not called. No

explanations are given for any of these witnesses

not being called. In our submission, the case

really does not provide on another level a suitable

vehicle for special leave because there is ample

ground in the facts for saying that the decision of

the Court of Appeal was correct. Your Honours can

see that the trial judge in the passage I have

taken Your Honours to at page 36 developed that and

then went on to say at page 37 at about point 2:

Further, it is not clear to me that it

was reasonable for the plaintiffs to have

relied upon the statement of Mr Groves, for it

was never communicated to Westpac that they

proposed to rely upon the statement, and in my
view there is some force in the argument that

since Mr Robinson did not tell Mr Groves the
whole of the facts about his financial

position, it is not reasonable for him and
therefore for South to be able to rely upon

the less than careful advice of Mr Groves.

More practically, on the evidence, it is

impossible to tell what loss flowed from the
advice of Mr Groves and the reliance upon it,
and what loss flowed from the failure of

Mr Robinson to inject capital funds into the

company, to cure its state of being under

Robinson 10 26/10/93

capitalised, that being the basis upon which

Mr Groves gave his advice.

Your Honours, Sir Harry Gibbs says in Amadio at

the bottom of page 455:

The general rule therefore is that a bank is

not obliged to disclose the surety matters

affecting the credit of the customer. Indeed,

a bank might well commit a breach of the duty

of confidence which it owes to its customer if

it did disclose matters of that kind. It has been held that there is no duty of disclosure

even when the customer has been suspected of

fraud or even when the customer's bankrupt

husband was able to draw on her account, and

cheques had been drawn on the account, but

orders had been given by the drawer not to pay

them.

His Honour points out that might be the extreme end

of the rule. Then at page 457 point 3 says:

The obligation is to reveal anything in the

transaction between the banker and the

customer which has the effect that the

position of the customer is different from

that which the surety would naturally expect,

particularly if it affects the nature or

degree of the surety's responsibility.

So that in this case again, why is the position of

the incoming surety different, because you have

simply a set of allegations that are made which the

Bank knows neither that they are true or false, and

all the judges have found that? They are not

proved in the case to the true, and yet it is said

that is the basis for saying that the Bank had a

duty to disclose those allegations just as

allegations, whether they be true or not, because

they were made, and because they are unusual

allegations. Nobody would dispute that they are

unusual allegations and the Bank manager clearly

thought they were, and it is obvious they are unusual. That cannot just be the test. That cannot be in itself sufficient, in our submission.

Those are our submissions, Your Honour.

MASON CJ: Yes, Mr Ireland.

MR IRELAND:  The submissions on the other side confuse two

branches of the case. The first branch of the case

was put on the basis of positive misrepresentation.

The trial judge accepted Mr Robinson was entitled

to escape the guarantee on that ground. The Court

of Appeal reversed that, and the comments that my

friend went to in Mr Justice Clarke's judgment

Robinson 11 MR IRELAND, QC 26/10/93

relate to that branch to the case. But His Honour

Mr Justice Clarke had to go on and consider as he

did the second branch of the case, which was

failure to disclose. In that part of the case the

respondent is faced with concurrent findings of the

trial judge and the Court of Appeal that the fraud

allegations were of the character that dictates

disclosure. That is most easily seen at page 89 as

well as the passage that Your Honour the

Chief Justice directed my friend do, where at

page 89 line 24 Mr Justice Clarke says:

The fraud allegations constituted

allegations that Mr Carroll had dealt

improperly with assets of the company prior to

settlement of the purchase and there is no

doubt that if they were true there had been a
diminution in the value of the business which

Robinson was purchasing. Accordingly they

were directly relevant to the purchase

transaction proposed by Robinson.

That is His Honour's finding.

TOOHEY J: It is put against you, Mr Ireland, that there was

no evidence that what the Bank had been told was,

in fact, true.

MR IRELAND: That is so, Your Honour. There will be cases

in which allegations have such gravity that the

only course open to the bank is to refuse to take

the guarantee, at least until the matter is

clarified. Here there was, on the court's

findings, a deliberate silence as to the

allegations closely proximate in time to the

settlement. It is not right to say, as my friend

says, that the Bank has a dilemma, ie, disclose the

allegations and risk breach of confidence to its

customer, or keep mute and take the guarantee.

There is a third course which is keep mute and not

insist on the guarantee until the matter is

investigated, and that is what should have occurred

in this case. That is why Justice Clarke embraces

the finding of the trial judge, that these were

directly relevant to the purchase transaction. So

one has that concurrent finding that my friend has

to overcome in order to dislodge this from the

Amadio/Goodwin test, and for reasons we have

already submitted His Honour engrafts a proviso on

to that which empties the test of defective

content.

MASON CJ: Mr Ireland, I have another difficulty with the

case. I can see some force in the dissenting

judgment of Mr Justice Mahoney but, of course, the

dissenting judgment of Mr Justice Mahoney does not

really rest on the principle relating to a bank's

Robinson 12 MR IRELAND, QC 26/10/93

duty to disclose unusual features of a particular

account to an intending guarantor. If you look at

page 58 you will see that essentially

Mr Justice Mahoney founds on what he considers the

Bank's duty to disclose being and that is that the

duty to disclose arises from the Bank's previous

representations, not related to the credit facts.

MR IRELAND:  I accept what Your Honour says, and that is

because - - -

MASON CJ: If you look at line 15 he says:

With respect, I do not think that the

principles on which reliance has been placed

apply in the present case.

The principles he is referring to are, of course, the principles enunciated in Goodwin and in Amadio.

This was not a case in which the issue was alone what a banker should reveal to a

prospective guarantor.

MR IRELAND:  Your Honour, that is not clear, with respect.

On page 58 when His Honour says:

With respect, I do not think that the

principles on which reliance has been

placed -

is a reference to the earlier passage on that page

where His Honour says:

Counsel referred to authorities detailing the principles for determining what must be

disclosed to a prospective guarantor.

MASON CJ: Well, they are those cases.

MR IRELAND:  Yes. So it seems to link up directly with

that. His Honour Mr Justice Mahoney says, "I am

not prepared to go along with Mr Justice Clarke's

reversal of the trial judge's findings on actual

reliance on the actual misrepresentation.

Therefore, this case should be decided by upholding

the trial judge's approach on the first branch of

the case." It is only when in the majority of the

Court of Appeal constituted by Justices Clarke and

Handley that there is a reversal of the majority, that they then are dictated to go on and look at

those very principles that His Honour does not have to decide for the purposes of determining the case.

So we would say, Your Honour, that

Mr Justice Mahoney here is not, as it were, passing

one way or the other on that question. His Honour

Robinson 13 MR IRELAND, QC 26/10/93

just stops at the solution to the case dictated by

the first branch of the argument.

MASON CJ: That is not how I would understand his judgment.

I would understand His Honour's judgment as

proceeding from a proposition that having made two

representations for its own purposes to the

intending guarantor about the state of the business

and subsequent facts falsifying them, the Bank came

under a duty to, as it were, correct what it had

said before.

MR IRELAND: That is in relation to the operative

misrepresentation.

MASON CJ: Yes.

MR IRELAND:  But the majority of the Court of Appeal

reversed that conclusion.

MASON CJ: Yes, I follow what the majority have said.

MR IRELAND:  So I am appealing, with respect, against the

majority's reasoning.

MASON CJ:  I realize that, but what I was rather putting to

you was my impression of the case, looking at it

from our position, is that I can see the force of

Mr Justice Mahoney's approach, and that does not

really support the case that you are presenting to

this Court.

MR IRELAND:  No, Your Honour, but as we have tried to put,

we are trying attack the majority reasoning - - -

MASON CJ: Yes, I follow that.

MR IRELAND:  - - - which is the ratio of the case.

MASON CJ:  I follow your attack on the majority. I am just

indicating to you that the ultimate result may not

be as clear.

MR IRELAND:  I accept what Your Honour is saying there, but

that would be a matter for fuller argument, with

respect.

MASON CJ: Well, maybe.

MR IRELAND: If this hurdle is overcome.

MASON CJ: Certainly, yes. The Court will give its decision

in this matter at 2 o'clock.

AT 12.32 PM THE MATTER WAS ADJOURNED UNTIL

LATER THE SAME DAY

Robinson 14 26/10/93

UPON RESUMING AT 2.00 PM:

MASON CJ:  The principle applicable to a bank's

responsibility to disclose to an intending

guarantor unusual features relating to the

particular account to be guaranteed was stated in

this Court's decisions in Goodwin v National Bank

of Australasia Ltd, (1968) 117 CLR 173, and
Commercial Bank of Australia Ltd v Amadio,

(1983) 151 CLR 447.

In this application, the applicant submits

that the Court of Appeal did not apply the

principle as stated in those decisions. However,

we are not persuaded that this is so. The case is, we think, one of applying the established principle

to the special and unusual facts of this case. In

our view, the outcome of the case turns rather on

an analysis of those facts than on any question of

general principle. As such the case is not

appropriate to the grant of special leave.

MR RARES:	Can Your Honour order costs?
MASON CJ:	You do not resist that, Mr Ireland?  You would

like to, but you do not.

MR IRELAND:	I cannot, Your Honour.
MASON CJ:	The application is refused with costs.

MR RARES: If the Court pleases.

AT 2.01 PM THE MATTER WAS ADJOURNED SINE DIE

Robinson 15 26/10/93