Westpac Banking Corporation v Spice, C.H

[1990] FCA 110

Re: WESTPAC BANKING CORPORATION
And: CHARLES HENRY SPICE
No. NG639 of 1989
FED No. 110
Appeal - Section 52 Trade Practices Act and Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Wilcox(2) and Burchett(2) JJ.

CATCHWORDS

Appeal - appellate court's approach to findings of fact involving the credibility of oral evidence - effect of alleged error of reasoning leading to acceptance of evidence - distinction between significant error of that kind and imperfection of form or expression - effect of omission of a consideration from trial judge's reasons.

Section 52, Trade Practices Act and Negligence - claim against bank arising out of foreign exchange loan - circumstances where established - reliance of applicant on bank and causation of loss where loan would not have been entered into had facts been adequately disclosed - Burns v. M.A.N. Automotive (Aust.) Pty Ltd (1986) 161 CLR 653 distinguished.

Trade Practices Act 1974, s.52

HEARING

SYDNEY

#DATE 4:4:1990

Counsel for the Appellant: Mr. S.P. Charles, QC and Mr.

B.R. McClintock

Solicitors for the Appellant: Allen, Allen and Hemsley

Counsel for the Respondent: Mr. G.A. Palmer, QC and Mr.

J.K. Chippindall

Solicitors for the Respondent: Dexter Healey and Co.

ORDER

The appellant be directed to bring in, on a date to be fixed, short minutes of appropriate orders in conformity with the reasons of the court.

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

JUDGE1

In this matter I have had the advantage of reading the judgment to be delivered by Wilcox and Burchett JJ. I agree with their conclusion that the appeal should be dismissed with costs.

1. The three critical dates which are in question are 9 January 1985, a day or so thereafter and 7 March 1985. These are the dates respectively of Mr. Spice's conversation with Mr. Lee, his conversation with Mr. Geddes and the day when he drew on the facility for the equivalent of $800,000 in Swiss francs. The significant conversation was Mr. Spice's conversation with Mr. Lee. Because of the attack made on the findings of the learned primary Judge about it I propose to set it out in full. According to Mr. Spice, the conversation as follows:-
   

"I said: Barry , I have heard for many years of people borrowing foreign currency loans at ridiculously (low) interest rates. They always seem to be too good to be true. Now I have heard of another one of your customers who has taken such a loan, what is the catch? And he said without hesitation: There is no catch. I think it is very much the thing to do. There are two foreign currency markets - again I cannot remember if he said London, I think it was London - London and Singapore. The bank would borrow on your behalf through Singapore and add its two per cent profit margin. The interest rate is about five per cent together with that two per…