Australia & New Zealand Banking Group Ltd v Hubner & Hubner [1997] QSC 220

,..,..."-~~,---,--~~,,.,-----:~----.----------- -=====-==~~~~=---r;-c ~Cr~ft.rz.v~ ~ tate Reporting Bureau..==~----------------------.--.- -_.- ... _-_. __ ... __ .. - ._._----_.. _... _.. _. _ ... _.. __ .__... _ .. _... __ ... _---_._._-- TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made _-Qr"-s-old-.W.ilb...QuLth~.j.·'LI:itleJJJl_utQQ[l.tY:-=.91Jlle-Di.rector, State Reporting Bureau. - SUPREME COURT OF QUEENSLAND CHAMBERS :) JONES J AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED v. COLIN RICHARD HUBNER and YVONNE HUBNER CAIRNS =) .. DATE 06/11/97 JUDGMENT - ~'Jt~t) COP~ES ISSUED ~~~ng Bureau !iffl.t~ I 0 I; , I } 'f "1 Respondent Plaintiff Applicant Defendants -- 1 of 6 -- 061197 D. 1 T16-17/LP'M/T CNS709/97 (Jones J) \ '~. HIS HONOUR: Thank you, I will give my decision now. Mr and Mrs Hubner, the a~plicants in this matter are the registered owners of property described as Lot 1 on, registered plan' number 701366. A Writ of Execution against the land was issued in favour· of the Australia and New Zealand Banking Group Limited (the respondent)_follpwi.I1.g_judgment on 19 June - 10 ======='=='F9~ F=-t-hat t-h~~ri>~Mem;:=··~~~~~~·tG··~-f£·.1':1:';€..)1';.. i='E~~~.• ~~.~~===:::::============ 'J'tr",.,.-- ;i!o.r:r,. •..;~ ·;:r~:;~*·:. ;~~f::;~, "''. ' -This was a judgment by default which the applicant sought to have it set aside in an application before Justice Byrne. That application. failed and the applicant then lodged a caveat over the land in an attempt to thwart or delay the execution of the Writ. The applicant instituted proceedings in the Federal Court on 14 October 1997 seeking restitution and damages resulting from "negligence; breach of duty, breach of statute and contract in 20 C c 30 the administration of their customers instruction with regard () to a guarantee" given by the applicants. A few days later, on 16 October 1997, the applicants issued a Summons in this Court seeking to stay the issue of the. above Writ of Execution. I take that relief sought to mean the stay of execution of the Writ which in fact, has already been issued. 40 C The applicant then on 3 November 1997 in this action, issued a 50 Summons ,for Directions seeking in particular orders that the respondent produc~ documents - presumably to facilitate the prosepution of the Federal Court action .• '. .t• ..' . • .~,.. ... 60 2 JUDGMENT rJ:.;i~; ."~':;''-'.--:...---'-'-"'--___________________________________ -- 2 of 6 -- ---~-----------~- --. - - - ~- -~~- 061197 D.1 T16-17/LP MIT .c.CNS709/97 (Johes J) ~:: " Implicit in the earlier Summons filed in this Court a~ expressly in the s~bmission made by Mr Hubner, is a request that by using the "provisions of the Jurisdiction of Courts (Cross-vesting) Act of 1987, I should transfer the Federal Court proceedings to this Court sO.as to deal with them in this action. It is not possible for me to consider such a course of action -being a matter which would have to be raised in the Federal ) ~/ Court Sec 5(4) of the Act. Even if I have the pbwer to. do so - perhaps pursuant to section 8 of the Act - I would not in ~\ any event, order such a trahsfer when judgment in the Supreme J Court action has already been entered and an application to set the judgment aside refused. The Summons for Directions is one which properly ought to be pursued in the Federal Court and its pursuit should probably ,---). be delayed until after pleadings in that Court have been exchanged. I dismiss the application for directions. 10 /,., ./ \ 20 ~~ 40 The remaining application on behalf of the applicant then, is to have the execution of the Writ following the judgment in this action, stayed. The respondent for its part, has applied to have the applicants' caveat over the land removed. 50 The main basis on which the applicants ask for the stay, is that following the decision of Justice Byrne refusing to set aside the judgment, they became aware of a fact which would... ".'''0. have entitled them to a different judgment in their favour. 60 3 JUDGMENT -- 3 of 6 -- a judgment or person against whom i.: made to be relieved 'discoyered after the giving of '. an' order;.: which, if discovered in itled:,the.:;,party against whom the 10 ..is given or 'made to a judgment or ·the party's, favour or to a different order, the party may apply to the Court or a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief, .... and for that· purpose may direct such proceedings to be <'taken, and such' question or issue of fact to be tried or " determined, and such inquiries to be made, as may be C just." 20 The 'newly discovered fact of which the applicants claim to have become aware, is that the respondent had breached its mandate under S. 62 (12.) . of the Cheques and· Payments Orders Act 1986 (Cwth). This section simply provides that a bank using a truncation system for the presentation of cheques is not relieved of any liability arising relation to any cheque had ··--~~e. c:::lleque been prese~~d physically to the drawee bank. ! ,.\~ I . Part of the applicants' claim against the respondent bank , ,- ,.' .:~ relates to their loss as guarantors of Cairns Glass Company .- . . . PtyLtd by reason of the bank's honouring of that company's ."'~;":'~::~: ch~~~~~>'J~f~~i~riJJ·. in accordance ~i th· the directors's ~ • ~,"",._ ... ~':<A:;_:"""''''~'''''.'~;-1~''f_~~''''';''-.,1;r'~.. "",~~~•.;;.,~;'':';;I:':''''';:j.,(''''~;..&...?--,;"'~~":'"~'~'''''''''''''"'''>'l!'''''',:''''.~''''.':'''''''';,,~.,." __ •• ;j~';;'~~,,'''''''';';~'''""':'-~i~~3."'J< •.":':"',·_'-">'_~'->"~ ,'-.. c 30 o ';;"",c'=x~;:j~i~s'f~ttctI6f{::tO=~~E~~~;~~0c .•. '·'.:~;'::!f~:~~~~'~"i_::;~'~'.;::'.'":''''' ... ,....:,..;.... ,., ...... ,. :;:;."....~... :i' .•.• ,.i .:,;: ~~~~~~,~~~~~~~~~~~~~~M._&~___ ~n •. _,.~,.~ __ .~_~~,~u- .. ··~:~~;7:;~i!~~~~~~~:.::.~~.:1i~:~~-~~~~e~!=,~~:~~~f~~:t~~%~~~~.?~:.~,~ge.. w~~cll~ .•. !~12~~::~~~~:j.·~2~~~: ". "the'"applicants to raiSEYorder45rule 1. The question of the .~.~-. _. -~ .... - -. --.-~-~. ··:.. j~Rg -..;., .-- '. ': ~ . ;'._"",..~.,; ........:.: .......• .'.::., .. ;r....~...•.~.-.'f...;;:..._.::':..:.".~,-,..,,~~..~."".- ......._".;.3:',_:~,r--.",-....~~,:;,'::Y..:::.:.:-.;..·=-...·~..\?,·.:..-.;.·..·.,...·=.T....<.".;;$".,.,':'":.;•..•.•-...!. ::_~;. -:;"'-•.-.......,- -,' .~.. - :- --. : .",:'---.:-.-,-:-'--'.'-.. ---:'--.' •. '•.- ..~~~.-":".,-... . --- 7-;.", <-7.-·.~-,"·,:-,·:ryJ':-."7~"":'J::-,:?\':;-,~~-;~;7i.::":':~-::~~~~:"':"'-~'"'""--".·'i _',"'''' _ ... - ":.- 'T' .'- -::"- ~" - " - - -·--·-·--.-bankLs~l±abi-l±t·y-for-that--alleged-breach-of-instruction-- was-a .-._-_.- --_... _.... _.. _............. _... .. - .... ....... ..... '. . -- 4 of 6 -- 061197 D.1 T16...,.17/LP M-/T CNS709/97 (Jones- J) Further to that, the amount shown on the material which could be said to measure the plaintiff's loss because of this breach, was only $50,000. The applicants claim that cheques totalling'a higher sum may have been incorrectly signed, is not clearly established. But even if there were such cheques, it is not clear whether these were used in payment of the company's lawful debts, in which event, the company, and thereafter the guarantors, would suffer no loss on that account. The provisions of order 45 rule 1 apply only to proven Or ~) accepted facts, not to claims that some facts or different '-----' facts may exist. In .the end result, I am not persuaded that the facts which have been discovered would entitle the applicants to relief pursuant to order 45 rule 1. ;~ difference between the applicants' debt to the respondent ~) f f '--- bank-and the value the property the subject 0 the Writ 0 Execution, is substantially more than the $50,000 referred to in the material. On this evidence, it is unlikely, even if ,the particular facts had been discovered before judgment ordering the recovery of pO$session of land, that the order would have been in any way 10 20 30 40 , different. Accordingly, I refuse the application to set' aside" 50 the order of J~stice Byrne. 60 • 5 JUDGMENT -- 5 of 6 -- 061197 D.1 T18/JFG MIT CNS709/97 (Jones J) Turning to the respondent's application to remove the caveat, the principles relating to this question are well-established. It is incumbent on the caveator to show that there is a serious question to be tried and that the balance of convenience favours the removal of the caveat. The claims raised in the Federal Court are claims simply for damages. The land in respect of which the order was made is a block of flats held by the applicants as investment. They had, in earlier discussions with the bank, offered to sell the land to reduce their indebtedness. The cause ,of action against the bank on the material adduced before me shows that its prosecution is not ,without difficulty. Further, that material would not inspire confidence that the applicants would be likely to be awarded damages approaching the lev~ of their indebtedness to the 10 Cj 30 respondent. In my view, the balance of convenience favours c=> the removal of the caveat and I so order. Question of costs? \ ~----HIS--HONOUR!--' I order that the applicants pay the respondents 50 costs of and incidental to ~ach of the summonses. ........ 60 __ _ • 6 JUDGMENT -- 6 of 6 --