Westpac Banking Corporation v Cockerill

WESTPAC BANKING CORPORATION v. GRAHAM DOUGLAS COCKERILL, ARTHUR THOMAS DINGLE and VALERIE DINGLE
No. QG 13 of 1997
FED No. 43/98
Number of
pages - 29
Contract - Practice and Procedure
(1998) 152 ALR 267

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

NORTHROP, LINDGREN AND KIEFEL JJ

Contract - Duress - Unconscionable Dealing - element of "illegitimacy" of threat and pressure in duress - whether can be unconscionable dealing associated with antecedent transaction - foreign currency transaction - customers induced to enter into it by conduct of bank - bank's threat to appoint receiver and manager if customers do not sign release of any claim or cause of action against bank - customers sign - whether signature of release result of duress.

Practice and Procedure - use to be made of admission made for purpose of hearing of separate question - construction of admission in sense different from that intended by admitting party who makes this clear - construction adopted different from that understood by parties - miscarriage of trial.

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (Considered)

Barton v Armstrong [1976] AC 104 (Considered)

Dimskal Shipping Co SA v International Transport Workers' Federation [1992] 2 AC 152 (Considered)

Universe Tankships Inc of Monrovia v International Transport Workers' Federation [1983] 1 AC 366 (Considered)

CTN Cash & Carry Ltd v Gallaher [1994] 4 All ER 714 (Considered)

Commercial Bank of Australia v Amadio (1983) 151 CLR 447 (Considered)

Pao On v Lau Yiu Long [1980] AC 614 (Considered)

Smith v William Charlick Ltd (1924) 34 CLR 38 (Considered)

BRISBANE, 3-4 November 1997 (hearing), 6 February 1998 (decision)

#DATE 6:2:1998

#ADD 12:2:1998

Counsel for the Appellants: Mr R Chesterman QC and Mr J Sheahan

Solicitor for the Appellant: Allen Allen & Hemsley

Counsel for the Respondents: Mr P Dutney QC and Mr G Moore

Solicitor for the Respondents: Caruana Kay & Barry

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The declaration made on 20 December 1996 in proceeding NG 29 of 1991 be set aside.

3. The order of 28 June 1995 in proceeding NG 29 of 1991 be set aside.

4. The respondents to the appeal (applicants in proceeding NG 29 of 1991) have leave to amend further their further amended reply in proceeding NG 29 of 1991 as they may be advised, by 27 February 1998.

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

NORTHROP J

The issue raised by this appeal is whether, pursuant to an accord and satisfaction, Westpac Banking Corporation ("the Bank") was released from obligations claimed against it by Graham Douglas Cockerill, Arthur David Thomas Dingle and Valerie Jean Dingle ("the Partners"). A simple description of an accord and satisfaction is given in Halsbury's Laws of England, Fourth Ed Vol 9 para 585:-

"Accord and satisfaction is the purchase of a release from an obligation, whether arising under contract or tort, by means of…