Thannhauser, J. v Westpac Banking Corporation Summary

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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

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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

Date 14 Mavcl? 1% 1

CaseChat Overview and Summary

In the case of Johanna Thannhauser v. Westpac Banking Corporation, the Federal Court of Australia considered an application for leave to appeal from the decision rendered on 19 March 1991. The applicant, Johanna Thannhauser, sought leave to appeal against the Westpac Banking Corporation regarding an issue of foreign exchange loan value and the timing of when a cause of action accrues in such cases. The case was heard in the Queensland District Registry of the Federal Court's General Division, and the decision to refuse leave to appeal was made by Justice Pincus.

The central legal issue before the court was whether a cause of action accrues under the Trade Practices Act 1974 when there is a likelihood of loss on discharge of a loan due to a sharp fluctuation in the value of the property involved. The applicant argued that no cause of action arises until the loan matures and a loss is suffered. In contrast, the respondent argued that a cause of action could arise earlier, even if the obligation increased significantly before the loan matured. The applicant's counsel contended that the broader question was of sufficient importance to warrant the attention of the Full Court, while the respondent's counsel argued that the matter was not distinguishable from previous cases and did not merit further review.

Justice Pincus found that the applicant's argument did not hold sufficient weight to warrant an appeal to the Full Court. He reasoned that the applicant's argument led to an unusual conclusion that no cause of action would arise even if the obligation significantly increased halfway through the loan period, despite a clear likelihood of loss upon discharge. Pincus J. concluded that the distinction the applicant sought from previous cases, such as Jobbins v. Cauel Court Corporation Ltd., lacked merit. While acknowledging the possibility of reconsideration of limitation issues by the High Court, he deemed it insufficient to warrant further examination by the Full Court. Consequently, leave to appeal was refused.

The court's decision was made final on 19 March 1991, with the refusal of leave to appeal. The applicant's request for an appeal to the Full Court was thus denied, and the earlier decision stood.

Thannhauser, J. v Westpac Banking Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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.

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.