Cachia v Westpac Financial Services Ltd [2000] FCA 1576

FEDERAL COURT OF AUSTRALIA

Cachia v Westpac Financial Services Limited [2000] FCA 1576

CORPORATIONS – unit trust – merger of unit trusts contrary to wishes of minority unitholder – construction of trust deed – power to amend trust deed TRADE PRACTICES – misleading and deceptive conduct – whether unitholders were misled or deceived

Neil v Nott (1994) 121 ALR 148 referred to SALV LAURENCE CACHIA v WESTPAC FINANCIAL SERVICES LIMITED N 175 OF 2000 WHITLAM, MOORE AND GYLES JJ 7 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 175 OF 2000

BETWEEN: SALV LAURENCE CACHIA

APPELLANT

AND: WESTPAC FINANCIAL SERVICES LTD

RESPONDENT

JUDGES: WHITLAM, MOORE AND GYLES JJ

DATE OF ORDER: 7 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 175 OF 2000

BETWEEN: SALV LAURENCE CACHIA

APPELLANT

AND: WESTPAC FINANCIAL SERVICES LTD

RESPONDENT

JUDGES: WHITLAM, MOORE AND GYLES JJ

DATE: 7 NOVEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 These proceedings illustrate the difficulties courts confront when parties appear without legal representation. The appellant, Mr Salv Cachia, has challenged steps taken in 1992 to merge two property trusts managed by Westpac Financial Services Ltd ("Financial Services"). At that time the appellant owned almost 60,000 units in the Westpac Real Property Growth Trust ("the Growth Trust") which he had acquired in 1985 for one dollar per unit. He now owns 596,670 units in the Westpac Property Trust ("the Property Trust") which is a trust with which the Growth Trust merged in 1992. The appellant's unchallenged evidence was that he presently owns properties "worth several million dollars". He has, however, elected to commence and conduct this litigation (at least at the trial and in this appeal) himself. His attempts to plead appropriate causes of action, identify applicable legal principles and prove the essential elements in his case have been imperfect. As the High Court said in Neil v Nott (1994) 121 ALR 148 at 150: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. 2 Nonetheless it is ultimately necessary, whether parties are legally represented or self-represented, to have recourse to the pleadings of an appellant (when read with the pleadings of other parties) to ascertain the nature of the case the Court is called upon to determine and, just as importantly, the nature of the case the opposing parties must meet. Accordingly, it is convenient to set out in a summary way the factual background and then identify the nature of the case raised in the pleadings before considering the conclusions of the primary judge and the challenge to them in this appeal.