Abriel v Australian Guarantee Corporation Ltd [2001] FCA 165

FEDERAL COURT OF AUSTRALIA

Abriel v Australian Guarantee Corporation Ltd [2001] FCA 165 Trade Practices Act 1974 (Cth), s 51AA Evidence Act 1995 (Cth), s 38 Stead v State Government Insurance Commission (1986) 161 CLR 141 applied RUDOLPH ABRIEL, VERA ABRIEL and PREMIER KNITS PTY LIMITED v AUSTRALIAN GUARANTEE CORPORATION LIMITED and WESTPAC BANKING CORPORATION NG 1018 OF 2000 HEEREY, SUNDBERG and MERKEL JJ 2 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1018 OF 2000

BETWEEN: RUDOLPH ABRIEL

FIRST APPELLANT

VERA ABRIEL

SECOND APPELLANT

PREMIER KNITS PTY LIMITED (ACN 005 879 920)

THIRD APPELLANT

AND: AUSTRALIAN GUARANTEE CORPORATION LIMITED (ACN 000 015 485)

FIRST RESPONDENT

WESTPAC BANKING CORPORATION (ARBN 007 457 141)

SECOND RESPONDENT

JUDGES: HEEREY, SUNDBERG and MERKEL JJ

DATE OF ORDER: 2 MARCH 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondents' costs of the appeal. 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 NG 1018 OF 2000

BETWEEN: RUDOLPH ABRIEL

FIRST APPELLANT

VERA ABRIEL

SECOND APPELLANT

PREMIER KNITS PTY LIMITED (ACN 005 879 920)

THIRD APPELLANT

AND: AUSTRALIAN GUARANTEE CORPORATION LIMITED (ACN 000 015 485)

FIRST RESPONDENT

WESTPAC BANKING CORPORATION (ARBN 007 457 141)

SECOND RESPONDENT

JUDGES: HEEREY, SUNDBERG and MERKEL JJ

DATE: 2 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

BACKGROUND 1 The following account of the circumstances leading to the dispute determined by the primary judge and of the claims made by the appellants are taken largely from his Honour's judgment. No exception was taken to his Honour's account. The first and second appellants ("the Abriels" or "Mr and Mrs Abriel") are married, and for present purposes can be treated as controlling Premier Knits Pty Limited ("the third appellant". In the early 1990s companies associated with the Abriels, including the third appellant, obtained finance from one or other of the respondents in circumstances that led to a legal dispute. The dispute was purportedly resolved by a deed of release dated 5 April 1994. In 1995 the appellants commenced fresh proceedings (NG338/95) to have the deed of release set aside and for other relief incidental to the causes of action that had been compromised by it. Those proceedings were purportedly compromised by a deed of settlement dated 28 April 1998 ("the deed"). Pursuant to the deed judgment was to be entered on the amended statement of claim in proceeding NG338/95 in favour of the respondents. The application and cross‑claim were to be dismissed with no order as to costs. The proposed orders were made on 8 May 1998.