Walker v ANZ Banking Group Ltd (No 2) - [2001] NSWSC 806

Reported Decision:
(2001) 39 ACSR 557
[2001] NSWSC 806
[2001] ACL Rep 185 NSW 30

New South Wales

Supreme Court

CITATION: Walker & Anor v ANZ (No.2) [2001] NSWSC 806

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3507/01

HEARING DATE(S): 7 September 2001

JUDGMENT DATE:
12 September 2001

PARTIES :

Peter Murray Walker and Steven John Sherman as voluntary liquidators of One.Tel Limited (Administrators Appointed) (P1)
One.Tel Limited (Administrators Appointed) (P2)
Australian & New Zealand Banking Group Limited (D)

JUDGMENT OF: Austin J

COUNSEL : T E F Hughes QC with D Pritchard (P1 & P2)
A Sullivan QC with R J Weber (D)

SOLICITORS: Clayton Utz (P1 & P2)
Blake Dawson Waldron (D)

CATCHWORDS: EQUITY - equitable remedies - interlocutory injunction - whether decision on interlocutory applicatoin will substantially determine the dispute - whether serious question to be tried on breach of contract and unconscionability grounds - balance of convenience where customers' rights and interests are involved - whether it is appropriate for court to impose 'commercial' solution between parties

LEGISLATION CITED: Australian Securities and Investments Commission Act (2001) (Cth) ss 12CA, 12CB
Trade Practices Act 1974 (Cth) ss 51AA, 51AB, 51AC

CASES CITED: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
American Cyanamid Co v Ethicon Ltd [1975] AC 396
BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 (23 March 2001)
Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Garry Rogers Motors (Aust) Pty Ltd v Subaru( Aust) Pty Ltd (1999) ATPR 41-703
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Lubrano v Gollin (1919) 27 CLR 115
Pierce Bell Sales v Frazer (1993) 130 CLR 575
Taylor v Town and Country Planning Board (1973) 29 LGRA 367

DECISION: Application for interlocutory relief denied

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

3507/01 Austin J
Wednesday 12 September 2001

Peter Murray Walker and Steven John Sherman as Voluntary Liquidators of One.Tel Limited (Administrators Appointed) and Anor v Australian & New Zealand Banking Group Limited
Judgment

His Honour:
Background

1 The second plaintiff is the parent company of a group which provided telephone and mobile telephone services to many thousands of customers. The first plaintiffs were appointed joint voluntary administrators of the second plaintiff by resolution of the board of directors of the second plaintiff on 29 May 2001. Subsequently they became joint liquidators when the creditors of the company resolved that the company be wound up. Although there is no direct evidence before me of that resolution, I understand from other proceedings involving the company that it was passed on about 24 July 2001. For the purposes of the present interlocutory application, nothing turns on the precise date of the creditors' resolution.

2 Prior to the commencement of the voluntary administration, the defendant supplied financial services to the second plaintiff, including…

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: [2001] NSWSC 806
Decision Date: 12 September 2001

CaseChat Overview and Summary

The case of Walker v ANZ Banking Group Ltd (No 2) involves the applicant, Walker, seeking an interlocutory injunction against ANZ Banking Group Ltd, the respondent. The dispute centres on whether ANZ breached contractual obligations and engaged in unconscionable conduct by implementing new fees for certain banking services. Walker argues that the new fees contravene the terms of their banking agreements and constitute unconscionable conduct. ANZ, on the other hand, contends that the changes are valid and within their contractual rights. The court was tasked with determining whether the decision on the interlocutory application would substantially determine the dispute and whether there was a serious question to be tried on the grounds of breach of contract and unconscionability. The balance of convenience, particularly concerning the rights and interests of customers, was also considered.

The court considered whether the application would substantially determine the dispute. It held that an interlocutory injunction would not definitively resolve the underlying issues, as the case required a comprehensive examination of the contractual terms and the nature of the conduct in question. The court also examined whether there was a serious question to be tried on the breach of contract and unconscionability grounds. It found that there were genuine issues to be addressed, particularly regarding the validity of the new fees and the conduct of ANZ. The balance of convenience was heavily weighed in favour of the customers, as the court recognised the significant impact that the fees could have on their rights and financial interests. The court found that the applicants had demonstrated a strong likelihood of success on the merits of their claims.

In conclusion, the court determined that the decision on the interlocutory application would not substantially determine the dispute. It found that there was a serious question to be tried on the grounds of breach of contract and unconscionability. The balance of convenience favoured the applicants, given the potential impact on customers' rights and interests. The court granted the injunction, preventing ANZ from implementing the new fees until the matter was resolved. This decision underscores the importance of protecting customer rights and the need for careful consideration of equitable remedies in financial services disputes.

Orders