Thannhauser, J. v Westpac Banking Corporation

[1991] FCA 332

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332 141

JUDGMENT NO. .. ......._ ".I - l

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 29 of 1989	1
QUEENSLAND DISTRICT REGISTRY	1

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BETWEEN: JOHANNA THANNHAUSER

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.	I
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DATE OF ORDER:	19 MARCH 1991
WHERE MADE:	BRISBANE	1 :  I
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THE COURT ORDERS THAT:

1.	Leave to appeal from the decision of 19 March 1991	I.
be refused.	I
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Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FEDERAL COURT OF

20  JUN 1991

IN THE FEDERAT, COURT OF AUSTRALIA 1 No. QG 29 of 1989

WEENSLAND DISTRICT REGISTRY	!
GENERAL DIVISION

BETWEEN: JOHANNA THANNHAUSER

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

CQRAM: PINCUS J.

PLACE: BRISBANE

- DATE: 19 MARCH 1991

EX TEMPORE REASONS FOR JUDGMENT

The applicant's counsel, Mr. McMurdo, applies for leave to appeal to the Full Court. His contention is that the broader question argued, depending on foreign exchange loan value, is one of sufficient importance to warrant the attention of the Full Court, and is not covered by Jobbins v.

Cauel Court Cor~oration	Ltd. (1989) 91 A.L.R. 314.
argument, on hedging, is not worth the consideration of the Counsel for the respondent argued that the narrower Full Court. But I do not need to say anything about that, as Mr. McMurdo, sensibly I think, relied only on the broad question.

That argument can be conveniently summarised as
follows: if one has a piece of property which is inherently
liable to fluctuate sharply in value, no cause of action

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accrues until it is clear that a loss is suff&red; under this argument, a loss is suffered in such a case as this only if the loan matures.

The difficulty I have is that this leads to the conclueion, which I think is odd, that even if halfway through the period of loan, the misled party's obligation has increased greatly (say, doubled) the party has no cause of action; at that stage there is a likelihood of loss on discharge of the loan and the present loss is that the value of the obligation has greatly increased. But that nevertheless gives no cause of action, on the applicant's argument.

I have taken into account Mr. McMurdoPs implication that one should be wary not to become too attached to one's own reasons. The view I hold is that the alleged ground of distinction from Jobbins has no strength. I can see that the whole matter of limitation in such cases may be reconsidered

by the High Court, which has never had to decide when the cause of action arises under s.52 of the Trade Practices Act	1974, but that is not sufficient to warrant our Full Court's
looking at it again.

Therefore I refuse leave to appeal.

I certify that the two

preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

Associate

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