Stern v National Australia Bank [1999] FCA 1421

FEDERAL COURT OF AUSTRALIA

Stern v National Australia Bank [1999] FCA 1421 TRADE PRACTICES – misleading and deceptive conduct – whether Bank made false representations concerning the enforceability of loan documents, acceleration clause, and extension of a loan – whether silence constituted misleading conduct – reasonable expectation – where representations were expressions of opinion – whether applicants relied on misleading and deceptive conduct when they entered into guarantees and later an assumption agreement – whether Ministerial consent required before commencement or conclusion of hearing – Trade Practice Act 1974 (Cth) ss 5, 51A, 52 LIMITATION PERIOD – under s 52 of the Trade Practices Act 1974 (Cth) limitation period runs from date on which cause of action accrued – right to damages under s 82 arises when loss is crystallised or contingency is met - loss accrued under Californian law when judicial foreclosure order as well as deficiency judgment had been given RECOGNITION AND ENFORCEMENT – application for recognition and enforcement of foreign judgment – deficiency judgment of Californian court – defence to enforcement if contrary to Australian public policy – relevant policy identified as policy in s 52 together with s 5 of the Trade Practices Act 1974 (Cth) – whether foreign judgment contrary to Australian public policy – whether foreign law contrary to Australian public policy FOREIGN LAW – choice of law – proof of foreign law a question of fact – expert evidence on content of foreign law – application of foreign law to the facts a matter for the Court of the forum – construction of acceleration clause in a Deed of Trust ESTOPPEL – Anshun estoppel – whether a claim under s 52 could have been raised in the Californian proceedings creating an estoppel from making the claim in the present proceedings WAIVER – application of substantive law of California – intent to relinquish right – whether Bank waived its right to enforce an acceleration clause in a loan by acceptance of payment of interest AGENCY – whether one applicant was agent for Bank when he communicated information given to him by Bank to the other applicant