Stergiou v Citibank Savings Ltd

[1999] FCA 1321

FEDERAL COURT OF AUSTRALIA

Stergiou v Citibank Savings Ltd [1999] FCA 1321

PRACTICE AND PROCEDURE – appeal against summary judgment entered in the course of the trial – exercise of discretion – whether an extension of time in which to apply should have been granted

NEGLIGENCE – “mental anguish and physical stress” suffered – damage caused by wrongful debiting of bank account, instituting and maintaining proceedings and lawful recovery of property – whether sufficient to found a claim for psychiatric injury – whether “damage to credit and social rating” could give rise to a claim

Brisbane Unit Development Corporation Pty Ltd v Deming No 456 Pty Ltd [1982] QdR 16
Young v Rank [1950] 2 KB 510
Eng Mee Yong v Letchumanan [1980] AC 331
Jaensch v Coffey (1983-1984) 155 CLR 549
Baltic Shipping Co v Dillon  (1992-1993) 176 CLR 344
Hinz v Berry [1970] 2 QB 40
Mount Isa Mines Limited v Pusey (1970) 125 CLR 383
Bunyan v Jordan (1936-1937) 57 CLR 1
Pham v Lawson (1997) 68 SASR 124
Campbelltown City Council v Mackay (1988) 15 NSWLR 501
Lonrho v Fayed (No 5) [1993] 1 WLR 1489

STANLEY STERGIOU, EKATERINE STERGIOU, NECTARIA STERGIOU, JOHN STERGIOU, ANESTE STERGIOU, ACT GENERAL CLEANING CO PTY LTD, NESCO FINANCE PTY LTD, NESCO INTERNATIONAL PTY LTD, NESCO INSURANCE BROKERS PTY LTD, NESCO TRAVEL SERVICES PTY LTD and S & E HOLDING PTY LTD v CITIBANK SAVINGS LIMITED

A 2 of 1999

HIGGINS, MADGWICK & DOWSETT JJ
24 SEPTEMBER 1999
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT

REGISTRY

A 2 OF 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

STANLEY STERGIOU
First Appellant

EKATERINE STERGIOU
Second Appellant

MECTARIA STERGIOU
Third Appellant

JOHN STERGIOU
Fourth Appellant

ANESTE STERGIOU
Fifth Appellant

ACT GENERAL CLEANING CO PTY LTD
Sixth Appellant

NESCO FINANCE PTY LTD
Seventh Appellant

NESCO INTERNATIONAL PTY LTD
Eighth Appellant

NESCO INSURANCE BROKERS PTY LTD
Ninth Appellant

NESCO TRAVEL SERVICES PTY LTD
Tenth Appellant

S & 3 HOLDING PTY LTD
Eleventh Appellant

AND:

CITIBANK SAVINGS LIMITED
Respondent

JUDGES:	HIGGINS, MADGWICK & DOWSETT JJ
DATE OF ORDER:	24 SEPTEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 2 OF 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

STANLEY STERGIOU
First Appellant

EKATERINE STERGIOU
Second Appellant

MECTARIA STERGIOU
Third Appellant

JOHN STERGIOU
Fourth Appellant

ANESTE STERGIOU
Fifth Appellant

ACT GENERAL CLEANING CO PTY LTD
Sixth Appellant

NESCO FINANCE PTY LTD
Seventh Appellant

NESCO INTERNATIONAL PTY LTD
Eighth Appellant

NESCO INSURANCE BROKERS PTY LTD
Ninth Appellant

NESCO TRAVEL SERVICES PTY LTD
Tenth Appellant

S & 3 HOLDING PTY LTD
Eleventh Appellant

AND:

CITIBANK SAVINGS LIMITED
Respondent

JUDGES:	HIGGINS, MADGWICK & DOWSETT JJ
DATE:	24 SEPTEMBER 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of Crispin J in the Supreme Court of the Australian Capital Territory.  Mr Stergiou, the first appellant, appeared for himself before us.  He is one of eleven appellants, the second appellant being his wife.  The third, fourth and fifth appellants are presumably members of his family, and the sixth to eleventh appellants are companies which, we infer, are associated with the family in some way.  Mr Stergiou did not seek to represent the other appellants or give any indication that he was authorized to do so.  Nonetheless the appeal proceeded very much as if he were appearing for all appellants. 

2. Mr Stergiou was very reluctant to argue his appeal.  He has had quite serious eye-trouble and complained that he was still incapacitated by it.  The medical evidence does not support his assertion.  He also complained that he had experienced difficulty in conferring with the Registrar as to the content of the appeal record and that the record was incomplete.  The Court indicated that he could supplement the record should he so wish.  He then said that he had not brought his documents with him and was not ready to argue the appeal.  The Court considered that he had received adequate notice of the date of hearing and that he should proceed.  He urged the Court to dismiss the appeal so that he could appeal to the High Court.  The Court advised him that he had no right of appeal to the High Court and that he would need leave.  He appeared to be aware of this.  In the end, he made limited submissions.

3. Unfortunately, in order to understand the nature of these proceedings, one must be aware of the long history of dealings between Mr and Mrs Stergiou and the respondent, Citibank.  Much of the history appears in the judgment of Crispin J.  In 1988 Mr and Mrs Stergiou mortgaged certain property to Citibank.  They allegedly defaulted, and on 29 January 1993, the Master made an order for possession in favour of Citibank.  That order was set aside by this Court on 30 June 1993, and the matter was remitted for trial.  Citibank therefore had to surrender possession.  On 12 May 1995 Higgins J, in the Supreme Court, gave judgment in the action in favour of Mr and Mrs Stergiou.  That decision was also upset on appeal and the matter remitted to Higgins J for further consideration.  His Honour disposed of it on 28 August 1997.  It is sufficient to say that in those proceedings, Citibank was unable to justify some of the debits made to the Stergiou account and that this led to its proceedings for possession failing.

4. The current statement of claim in the present action was delivered on 12 March 1998, with minor amendments made on 23 June 1998.  The statement of claim alleges:-

   ·That Mr & Mrs Stergiou mortgaged their property to Citibank on 8 April 1988;

   ·That thereafter, Citibank wrongfully debited certain amounts to their account (a matter which was at least partially proven in the proceedings before Higgins J);

   ·That Citibank wrongfully demanded payment by notice dated 7 February 1992, commenced legal proceedings on 23 March 1992, recovered judgment for possession before the Master and took possession pursuant thereto;

   ·That the first and second appellants are entitled to treat the mortgage as discharged because of the “negligent” wrongful debits;

   ·That the appellants have terminated the mortgage and have suffered loss and damage.  There is a specific claim for $220.79 “in respect of credit charges billed but not due”.  The following further particulars are given:-

   PARTICULARS OF DAMAGE

   1.Mental anguish and physical stress suffered by the first, second, third, fourth and fifth named Plaintiffs.

   2.Nervous shock suffered by the first, second, third, fourth and fifth named Plaintiffs.

   3.        Damage to various goods and chattels of all named Plaintiffs.

   4.Damage to credit and social rating suffered by the first, second, fifth, sixth, seventh, eight, ninth, tenth and eleventh named Plaintiffs.

   PARTICULARS OF LOSS

   1.Loss of income by the first, second, fifth, sixth, seventh, eight, ninth, tenth and eleventh named Plaintiffs.

   2.Loss of profits by the fifth, sixth, seventh, eight, ninth, tenth and eleventh named Plaintiffs.

   3.Loss of place of residence by the first, second, third, fourth and fifth named Plaintiffs.

   4.Loss of place of business and registered office by the sixth, seventh, eighth, ninth, tenth and eleventh named Plaintiffs.

   5.Loss of potential income, profits and business by the sixth, seventh, eighth, ninth, tenth and eleventh named Plaintiffs.

   6.Loss of various goods and chattels of all named Plaintiffs.

   7.Loss of use of various goods and chattels by all named Plaintiffs.

   PARTICULARS OF EXPENSES

   1.Medical expenses incurred for the first, second, third, fourth and fifth named Plaintiffs.

   2.Removal expenses for all named Plaintiffs.

   3.Accommodation expenses for the first, second, third, fourth and fifth named Plaintiffs.

   4.Legal expenses for the first and second named Plaintiffs.

5. The action came on for trial before Crispin J on 23 June and continued on 24 June and 8-9 October without reaching conclusion.  It seems that the length of the hearing was due partly to the nature of the claims and partly to a series of procedural steps which took up much of the time.  In any event, when it became obvious that the matter would not be completed on 9 October, Citibank applied for leave to seek summary judgment pursuant to O 17 Rule 1 which provides:-

   (1)  Within 10 days after entering an appearance to an originating application, or at any later time by leave of the Court, a defendant may apply to the Court for summary judgment.

   (2)      On an application under this rule, the Court may make an order under subrule (3) if satisfied that –

   (a)       the action is frivolous or vexatious;
   (b)       there is a good defence to the action on the merits; or
   (c)       the action should be finally disposed of summarily, or without pleadings.

   (3)       On an application under this rule, the Court may –

   (a)order that judgment be entered for the defendant with or without costs;

   (b)order that the plaintiff shall proceed to trial without pleadings; or

   (c)if all parties consent – make an order disposing of the action finally, without appeal, in a summary manner.

6. His Honour gave leave to make the application and granted summary judgment against the various appellants.  Although it is not entirely clear, it is probably safe to assume that the appellants wish to challenge both the exercise of the discretion to grant leave to make the application for summary judgment and the subsequent judgment itself.  It is appropriate to deal with these questions separately.

   Leave to Apply

7. It is a little difficult to understand the basis upon which this exercise of discretion is challenged.  The only possible ground is ground 2(a) of the notice of appeal which asserts that:-

   His Honour’s decision to give summary judgment for the defendant against all plaintiffs/appellants erroneously and hastily particular the last stages of the proceedings.

8. This may mean that the application ought not to have been granted at such a late stage.  The factors which appear to have weighed with his Honour appear at par 14 of the judgment:-

   No date has been allocated for the resumption of the trial and the grant of leave would not give rise to any delays.  Nor has it been suggested that any other prejudice might be caused by now permitting the defendant to pursue the application for summary judgment.  On the other hand, should the case proceed to finality at trial it would involve calling a great deal of evidence including expert medical evidence as to the psychological harm allegedly caused the first to the fifth plaintiffs and the loss of profits allegedly suffered by the sixth to the eleventh plaintiffs.  The considerable expense thereby incurred would be wasted if the claim were subsequently held to have been untenable.  The arguments advanced on behalf of the defendant are all capable of being resolved by reference to the nature of the causes of action pleaded in the amended statement of claim.  In the circumstances I think it appropriate to grant leave for the application for summary judgment to be made even at this late stage of the proceedings. 

9. No doubt an application pursuant to O 17 ought normally be made at a very early stage.  Rule 1 contemplates that course.  However it also contemplates the possibility of an extension of time, no doubt to accommodate the possibility that as the action proceeds towards trial, documents or other evidence may emerge, demonstrating that the action must fail.  In those circumstances, no good purpose would be served by insisting that the action go to trial.  Historically, it was once thought that a summary judgment application could only be made before pleading.  See, for example, Nayeiob Qld Pty Ltd v Soric [1974] QdR 161 and cases there cited. However that view is no longer current. See, for example, Brisbane Unit Development Corporation Pty Ltd v Deming No 456 Pty Ltd [1982] QdR 16. In any event, the present rule clearly provides for such an application by leave outside the prescribed period after appearance.

10. Following argument of the appeal, it occurred to us that the course which had been adopted in this case might undermine the general rule in civil trials conducted before a Judge without a jury, that the Judge ought not rule on a submission of “no case to answer” without putting the defendant to an election as to whether or not to call evidence.  This rule is conveniently discussed by Devlin J (as his Lordship then was) in Young v Rank [1950] 2 KB 510 at 512-514. It appears that the rationale for the rule is that if a defendant were permitted to make such an application before election, it might place the trial Judge in the position of having to rule twice on the case, once on the submission of “no case” and if that were unsuccessful, at the end of the trial. Further, a successful submission might be upset on appeal, in which case the matter would either go back to the same Judge for continuation of the hearing or alternatively, there would have to be a new trial. Either course would be unsatisfactory. The application in the present case, although pursuant to O 17, was very similar in effect to a submission of “no case”.

11. There are practical difficulties for a Judge in entertaining a defendant’s application for summary judgment in the course of the trial.  As we understand it, the defendant must accept the case as pleaded and as demonstrated by the plaintiff’s evidence taken at face value, without regard to his or her own evidence, subject to exceptional circumstances such as those discussed in Eng Mee Yong v Letchumanan [1980] AC 331 at 341. It may often be quite difficult for a Judge, part-way through a trial, to adopt such an artificial attitude towards it. This may be another reason for not readily entertaining an application under O 17 in the course of the trial. Nevertheless, it would be wrong to seek to lay down guidelines for the exercise of such a broad discretion or to intervene by way of appeal other than in cases where there is a possibility of injustice. This will rarely be the case. If a Judge “wrongly” permits an application out of time and decides it correctly (one way or the other), neither side will have suffered any injustice. If a Judge declines to allow such an application out of time, then the matter will proceed to trial in the usual way.

12. It is unlikely that a trial Judge would entertain such an application unless he or she had formed a clear prima facie view as to the inevitable outcome of the case, keeping in mind the difficulties to which I have referred and the possible additional cost to the parties in the event that he or she incorrectly intervenes and is reversed on appeal.  Provided such matters are kept in mind, it is doubtful whether an exercise of the discretion to extend time will ever result in anything other than a saving of time and money.  In the present case, we cannot see any other likely result.  We see no basis for concluding that the discretion to extend time has miscarried.  It may be that in order to appeal against that exercise of the discretion, leave would be necessary, but we need not consider that matter further.

    The Substantive Judgment

13. Although it is far from clear, the claims appear to be in negligence.  It will be convenient to deal with them by reference to the various appellants.

    Claims by the Third to Eleventh Appellants

14. His Honour concluded that neither the pleadings nor the evidence disclosed any cause of action at the suit of these appellants.  The only alleged connection between the third, fourth and fifth appellants and the conduct of Citibank is that they lived on the subject land.  The only relationship between the sixth to eleventh appellants and Citibank’s conduct is that their registered offices and places of business were on the land.  These allegations, clearly enough, would not confer upon any of those appellants a cause of action against Citibank.  It was not suggested in argument that there was anything in the evidence which might have taken the matter further.  In those circumstances the appeals by the third to eleventh appellants should be dismissed.

    Claim that the First and Second Appellants have Discharged the Mortgage

15. There is no suggestion that the first and second appellants have tendered whatever is properly owing pursuant to the mortgage, nor that the debt has been repaid.  Whatever consequences may follow from an incorrect debit by a mortgagee, it does not entitle the mortgagor to a discharge of the mortgage.  This claim must fail.

    Claims by the First and Second Appellants in Connection with Chattels, Lost Income and/or Profits

16. His Honour concluded that there was simply no evidence to support such claims and on appeal, no attempt was made to contradict that finding.

    Claim that the First and Second Appellants Suffered Nervous Shock

17. Although the statement of claim alleges that all of Citibank’s particularised conduct caused nervous shock, in the course of argument it appeared that the real complaint was about its taking possession of the subject property.  Obviously, that incident was much more “traumatic” than the other conduct complained of, namely making incorrect debit entries, wrongfully demanding payment and entering judgment.  Indeed, wrongful debiting could hardly be productive of nervous shock, at least not until the fact of such debit was made known to the customer.

18. His Honour identified, from the judgments of Gibbs CJ, Brennan and Deane JJ in Jaensch v Coffey (1983-1984) 155 CLR 549, that reasonable foreseeability of psychiatric injury is one indispensable requirement of a successful claim to damages for nervous shock. His Honour concluded that “making wrongful debits or even instituting and maintaining the proceedings to recover possession of the property” could not give rise to such a foreseeable risk. We agree. We would also doubt whether taking possession of the property pursuant to a court order could give rise to a foreseeable risk of nervous shock, but the learned trial Judge disposed of that possibility in another way, holding that no cause of action lay for damages suffered as a result of conduct pursuant to a court order. That view was not challenged in argument, and we consider it to be correct for the reasons given by his Honour. Thus the claim for damages for nervous shock cannot be sustained.

    Other Heads of Damage

    The learned trial Judge dealt with other heads of damage compendiously and in a way which appears, at first blush, to be somewhat imprecise.  His Honour firstly noted that the law does not generally recognise claims for negligently causing mental anguish or stress not amounting to physical or psychiatric injury.  His Honour recognised, however, that in some cases, awards had been made for distress and injury to feelings and for injury to reputation, concluding that such claims could not be excluded summarily as unarguable. His Honour concluded, however, that all claims by the first and second plaintiffs were unsustainable “because it was common ground that possession of the property had been obtained by the defendant pursuant to an order of the Court”.  As we have said, we agree that any claim for damages which is dependent upon Citibank’s taking possession must fail, but that would exclude these claims only to the extent that they were so dependent.  That would not dispose of any claim arising from wrongful debiting, demanding payment and commencing legal proceedings.  In the course of the argument, we drew this matter to the attention of counsel for Citibank.  His response was that he thought that the relevant psychiatric evidence depended upon the taking of possession as being the cause of any upset, rather than any preceding conduct.  He said also that he thought that the matter had been disposed of by the decision of the High Court in Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344, submitting that the case established that such a claim could only be made out where there had been a breach of a contract of a certain kind. Whilst that may be an accurate description of the decision in Dillon, the Court was there concerned only with claims for damages in contract and was not seeking to describe the limits of claims in tort.

1. It is desirable that we identify the precise nature of the outstanding claims by the first and second appellants.  They are:-

   ·For mental anguish and physical stress;

   ·For damage to credit and social ratings;

   ·For loss of place of residence;

   ·For medical expenses;

   ·For removal expenses;

   ·For accommodation expenses;

   ·For legal expenses;

   ·For $220.79 as wrongfully debited credit charges.

2. His Honour considered that the claims for damages for removal expenses, accommodation expenses and loss of place of residence based upon Citibank’s taking possession must fail, although a claim to restitution might succeed.  The first and second appellants were invited to re-plead their claims concerning these matters.  In view of the generally unsatisfactory nature of the pleading, this was an appropriate course to take.  Neither side has expressly criticised that approach.  As to the claim for $220.79, we would have expected it to have been dealt with in the proceedings before Higgins J, but in any event, we were not pointed to any factual basis for the claim, whether it be in negligence or upon some other basis.

3. That leaves the claims relating to “mental anguish and physical stress” and “damage to credit and social rating”.  His Honour’s reasons for dismissing these claims are not entirely clear.  We do not mean to be critical in saying that.  The diffuse and marginal nature of these claims no doubt rendered them of little significance in the overall proceedings as they were conducted before Crispin J, but for present purposes, they must be considered separately.

4. The courts have traditionally refused:

   …“to permit recovery for mental suffering unaccompanied by objective and substantially harmful physical or psycho-pathological consequences: mere fright, anguish or grief is deemed too trivial, evanescent or easily faked, unless it either accompanies some external injury (when it will readily qualify as but another of the scrambled strands composing the conventional item of “pain and suffering”) or constitutes a causal link with some later external injury… .  Otherwise emotional shock must amount to “physical injury” or, more precisely, it must have resulted in some organic damage… , or in severe psychiatric injury…”.  (See Fleming, “The Law of Torts” (9th Ed) at p 173).

5. Although this statement was made in connection with claims for nervous shock, it reflects a general limitation upon recovery in actions for negligence.  See Hinz v Berry [1970] 2 QB 40, especially at 42, per Lord Denning MR:-

   In English law no damages are awarded for grief or sorrow caused by a person’s death.  No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life.

6. At page 44 Lord Peason said:-

   The first factor was her own inevitable grief and sorrow at losing her husband, a good husband who was also a good father to her family.  That would have caused much sorrow and mourning in any event.  Secondly, there was her anxiety about the welfare of her children who were injured in the accident.  Thirdly, there was the financial stress resulting from the removal of this very hard-working breadwinner who took extra work in addition to his normal work.  She may well have been in considerable financial difficulties.  The fourth factor was the need for adjusting herself to a new life, which may well have been quite unusually severe in this case.  Now, all those four factors are not compensatible, that is to say that they are not proper subjects to be taken into account in assessing damages according to English law.

7. This case was cited with apparent approval by Windeyer J in Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 394. A similar approach is implicit in the majority judgments in Bunyan v Jordan (1936-1937) 57 CLR 1 at 14 (per Latham CJ), at 15 (per Rich J) and at 16-17 (per Dixon J). Hinz was cited with apparent approval by Lander J (Cox and Bollen JJ concurring) in Pham v Lawson (1997) 68 SASR 124 at 152.

8. It is also necessary to refer to the decision of the Court of Appeal (NSW) in Campbelltown City Council v Mackay (1988) 15 NSWLR 501. The headnote of that case states:

   In an action for damages for damage to property caused by the defendants’ negligent act or omission, the plaintiffs’ entitlement to recover damages for vexation, worry, distress and inconvenience suffered as a result of the defendant’s negligence, may include damages for a psychiatric illness that is a reasonably foreseeable result of the negligence and there is not justification for the measure thereof to be limited to modest damages.

9. That was a case in which the plaintiffs’ “dream home” collapsed as a result of negligence by engineers, the local council and the building contractor.  The plaintiffs suffered breakdown of their marriage and psychiatric illness as a result.  At first instance, they were awarded damages for nervous shock, but the Court of Appeal considered that there was no “sudden affront to their respective psyches” sufficient to justify the judgment on that basis.  McHugh JA (Kirby P and Samuels JA concurring) dealt with an alternative claim at 510-512.  At 511 his Honour said:-

   The Plaintiffs in the present case suffered major anxiety, insecurity and persistent distress as a result of the collapse of their house in July 1984.  Moreover, the effects of that anxiety, insecurity and distress combined with other factors to create the severe depressive disorders from which both plaintiffs eventually suffered.

   In the circumstances, I think that the defendant’s notice of contention should be upheld.  It is true that this has the result that, although they have failed in their action for nervous shock, they obtain the same damages by reason of the negligent damage to their property.  But there is no inconsistency in this conclusion because two quite separate and distinct causes of actions are involved.

   In an action for nervous shock, the sustaining of a psychiatric illness by shock is fundamental to the cause of action.  In an action for damages for physical injury, a plaintiff who has suffered physical injury is entitled to recover for consequential psychiatric illness.  A plaintiff in such an action does not have to establish that the psychiatric illness is the result of a shock caused by the sudden perception of some phenomenon for which the defendant is responsible.  It is enough that the psychiatric condition is the reasonably foreseeable result of the defendant’s negligence.  Likewise in an action for damages for damaged property, the plaintiff is entitled to recover for personal damage which is the reasonably foreseeable result of the defendant’s negligent damage of that property… .  It is not a question of whether the damage claimed can be categorized as vexation, distress or inconvenience.  The matter does not depend on labels.  The question is whether the consequential damage is the reasonably foreseeable result of the defendant’s negligence.  Proof that mental illness is the reasonably foreseeable result of negligent damage to property may often be more difficult to establish than proof that it is the reasonably foreseeable result of the negligent infliction of personal injury but the same principles of causation and remoteness apply, whether the cause of action in tort is for damage to property or harm to the person.

10. It is clear that his Honour was considering actual psychiatric injury and not mere vexation or distress.  There can be no claim for “mental anguish” or “physical stress” falling short of physical or psychiatric injury or illness.  We assume that the term “physical stress” as used in the pleading means stress of a psychological, rather than strictly physical kind.  There is no suggestion in this case of physical harm flowing from acts other than the taking of possession of the land.

11. “Damage to credit and social rating” appears to be an alternative way of describing damage to reputation.  We are not aware of any authority for the proposition that such “damage” can be recovered in an action in negligence.  See McGregor on Damages, (16th edition) at pars 89 and 1938-1939 and the decision of the Court of Appeal in Lonrho v Fayed (No 5) [1993] 1 WLR 1489. As to the claim for medical expenses, the absence of any allegation of actionable physical or psychiatric injury leads to the conclusion that such treatment was not necessitated by actionable misconduct on the part of Citibank. As to legal expenses, if the first and second appellants incurred any such costs as a result of Citibank’s conduct, they should have been dealt with in the proceedings in connection with the claim for possession. Alternatively, they may perhaps be part of the “restitution” claim which his Honour has invited the first and second appellants to raise. We can see no basis for such a claim as an incident of a claim in negligence, nor any other basis on the material as it is.

12. We consider that the judgment at first instance is correct and that the appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.

Associate:
Dated:             24 September 1999

Counsel for the Appellant:	The Appellant appeared In Person
Counsel for the Respondent:	Mr B Meagher
Solicitor for the Respondent:	Phelps Reid
Date of Hearing:	12 August 1999
Date of Judgment:	24 September 1999