Stevens, G. v Westpac Banking Corporation - [1992] FCA 474

4-74 j Q 2

JUDGMENT NO. ..ae. .n.e r m m m s m

IN TIIE FEDERAL COURT OF AUSTRALIA)

NEW SOUTFI WALES DISTRICT REGISTRY) NO NG 436 of 1991

GENERAL DIVISION 1

BETWEEN GARRY STEVENS
Applicant

AND W E S T P A C - B A N K I N G
CORPORATION
Respondent

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 29 JUNE 1992

The matter before the Court this morning was fixed for a two day hearing. After some opening discussion, it became clear that it amounted to a claim by the applicant for $150,000 for an alleged loss of profits on a proposed sale of a hotel in Redf ern. The licensee of the hotel, or the party who apparently lost the profit, was the applicant's company, which is now in liquidation. It therefore does not seem to be disputed that if there was a loss, it was a loss of the company of which the applicant held a 49 per cent shareholding. That meant that the maximum entitlement of the applicant would have been 49 per cent of whatever award was found appropriate in terms of any loss that could have been proved. The company apparently was significantly insolvent at the time and therefore the chances of the applicant recovering any money at all, whatever be the position on liability,

appeared to be very minimal.

Now, after some discussions for which I adjourned, the applicant applies to withdraw his application.

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According to order 22, rule 2, a party maFiing a c&im 2bLr~.

relief may only discontinue a
this point either with consent or with 7:l.i': ,, ,!-,
refuses consent and therefore the

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should be granted. A-$.' '

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It is obvious that a court would allow an applicant to discontinue or withdraw a claim rather than force him to a costly hearing which he does not wish to undertake and which may be unsuccessful. However, the respondent has come to Court ready for a hearing and incurred costs in preparation. There is a need to protect it from the possibility that the claim could be brought at another time, with all or most of the costs having to be incurred again.

The applicant's counsel, who is new to the case in the sense

that he has apparently only recently been instructed, advises fairly that it is the applicant's intention to pursue the

respondent for damage to his reputation rather than under section 52 of the Trade Practices Act 1974 and for breach of contract as raised in the current form of the statement of claim. A defamation action would not normally be available in this Court.

It is said on behalf of the applicant that in realistic terms it is not at all likely that this case will or could be resurrected. On the basis of what I have read of the material…

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: [1992] FCA 474
Decision Date: 29 Jun 1992

CaseChat Overview and Summary

The case of Stevens, G. v Westpac Banking Corporation involved the applicant, Garry Stevens, seeking to withdraw his claim against the respondent, Westpac Banking Corporation, for $150,000 in lost profits from the sale of a hotel. The company through which the applicant sought to recover the loss was in liquidation, and his personal entitlement would be limited to 49% of any award. Given the company's insolvency, the likelihood of any recovery was minimal. The applicant sought to discontinue the claim to pursue a defamation action instead. The court considered the implications of allowing the withdrawal of the claim, including the potential for incurring unnecessary costs and the need to protect the respondent from repeated litigation. The judge ultimately refused to allow the withdrawal, considering the speculative nature of the applicant's approach and the lack of justification for granting further time. The claim was dismissed, and the respondent was awarded costs on a party and party basis.

The legal issues centred around the applicant's right to withdraw the claim under order 22, rule 2, and the court's discretion to grant leave to discontinue. The court had to balance the applicant's right to discontinue against the respondent's preparedness for the hearing and the potential for incurring costs unnecessarily. The judge also had to consider whether the costs incurred by the respondent should be awarded on an indemnity or solicitor and client basis, given the hopeless nature of the applicant's claim. The court ultimately concluded that while the case was without merit, the applicant should not bear the full burden of the additional costs, and the respondent was awarded costs on a party and party basis.

The court further addressed the respondent's cross-claim for the repayment of two overdrafts amounting to $27,993.12. Given the applicant's failure to defend the cross-claim, the judge proceeded to enter judgment in favour of the respondent without strict adherence to the rules on summary judgment. The court ordered that the applicant pay the respondent's costs of the claim and cross-claim and that the documents produced on subpoena be returned to their originators.

Orders