Drambo Pty Ltd v Westpac Banking Corporation Ltd [1996] FCA 655

CATCHWORDS TRADE PRACTICES - Foreign currency loan - Borrower seeking to re-finance - Representations concerning advantages of off-shore borrowing - Whether misleading and deceptive - Whether borrower relied upon representations in entering into loan - Whether loss caused by reliance. NEGLIGENCE - Foreign currency loan - Borrower seeking to re-finance - Circumstances under which a duty of care will arise - Content of duty - Whether careless representations made - Whether representations relied upon - Whether loss caused by reliance - Whether lender's reconversion of loan to Australian dollars negligent. LIMITATION OF ACTIONS - Foreign currency loan - Borrower remaining in foreign currency as a result of representations - Loss of opportunity to reconvert loan to Australian dollars - Date of accrual of cause of action. UNCONSCIONABLE CONDUCT - Fiduciary relationships - Foreign currency management agreement - Whether fiduciary relationship between parties - Content of fiduciary relationship governed by contract - Whether borrower breached fiduciary duties by engaging in "point taking". CONTRACT - Foreign currency management agreement - Term that no fee would be charged by manager - "Point taking" by manager - Whether breach.

EVIDENCE - Similar facts - Foreign currency loan - Alleged representations inducing loan - Similar representations inducing another borrower - Admissibility. DEEDS - Material alteration by one party after delivery - Whether consented to by other - Date of consent not apparent - Time from which alteration operates. INCOME TAX - Withholding tax - Foreign currency loan - Provision in facility agreement obliging borrower to pay withholding tax - Provision void - In reliance on provision lender debits borrower's account with tax and remits to Commissioner - Recovery by borrower - Money had and received - Restitution - Unjust enrichment. BANKER AND CUSTOMER - Security documents entitling bank to charge interest at such rate or rates as it from time to time determines - Validity. CONTRACT - Security documents entitling bank to charge interest at such rate or rates as it from time to time determines - Validity - Whether term can be left to discretion of one party - Illusory promise - Uncertainty. Trade Practices Act 1974, ss 51A, 52, 82(2) Income Tax Assessment Act 1936, ss 128B, 261 Limitation of Actions Act 1974 (Qld), s 10(1)(a) DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 100 ALR 468 Martin v Osborne (1936) 55 CLR 367 Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 Aroutsidis v Illawara Nominees Pty Ltd (1990) 21 FCR 500 Westpac Banking Corporation v Spice (1990) 12 ATPR 41-024 Pappas v Soulac Pty Ltd (1983) 50 ALR 231 Denning v Darling (1889) 20 NE 107 Gould v Vaggelas (1985) 157 CLR 215 Metcalfe v NZI Securities Australia Ltd (1995) ATPR 41-418 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Warner v Elders Rural Finance Ltd (1993) 41 FCR 399 Redmond v Allied Irish Banks Plc (1987) 2 FTLR 264 David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR 1 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Karedis Enterprises Pty Ltd v Antoniou (1995) ATPR 41-427 Thannhauser v Westpac Banking Corporation (unreported Pincus J 19 March 1991) David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Neate v Harding (1851) 6 Exch 349 Bavins & Sims v London and South Western Bank Ltd [1900] 1 QB 270 Westdeutsche Bank v Islington LBC [1996] 2 WLR 802 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1 Diversified Mineral Resources NL v CRA Exploration Pty Ltd (1995) ATPR 40-381 ANZ Banking Group (NZ) Ltd v Gibson [1981] 2 NZLR 513 Kabwand v National Australia Bank Ltd (1989) 11 ATPR 40-950 Commonwealth Bank of Australia v Prentice (unreported Supreme Court of New South Wales 14 December 1995) Cross v National Australia Bank Ltd (unreported 29 April 1994) Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 Godecke v Kirwan (1973) 129 CLR 629 Powell v Jones [1968] SASR 394 Sweet and Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699 DRAMBO PTY LIMITED v WESTPAC BANKING CORPORATION LIMITED QG 92 of 1991 COURT: Sundberg J PLACE: Brisbane DATE: 1 August 1996