Garrett v Westpac Banking Corporation [2007] FCA 439

FEDERAL COURT OF AUSTRALIA

Garrett v Westpac Banking Corporation [2007] FCA 439

PRACTICE AND PROCEDURE – summary judgment – s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – no demonstrated standing – no reasonable prospect of success Federal Court of Australia Act 1976 (Cth) s 31A(2) Bills of Exchange Act 1909 (Cth) s 59, s 28(1) Banking Act 1959 (Cth) Federal Court Rules O 20 UNCITRAL Convention on International Bills of Exchange and International Promissory Notes (1988) ANDREW MORTON GARRETT v WESTPAC BANKING CORPORATION, TIERNAN WHITE AND CARL ZUBER No SAD 9 of 2007

FINN J

26 MARCH 2007

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 9 OF 2007

BETWEEN: ANDREW MORTON GARRETT

Applicant

AND: WESTPAC BANKING CORPORATION

First Respondent

TIERNAN WHITE

Second Respondent

CARL ZUBER

Third Respondent

JUDGE: FINN J DATE OF ORDER: 26 MARCH 2007

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 9 OF 2007

BETWEEN: ANDREW MORTON GARRETT

Applicant

AND: WESTPAC BANKING CORPORATION

First Respondent

TIERNAN WHITE

Second Respondent

CARL ZUBER

Third Respondent

JUDGE: FINN J

DATE: 26 MARCH 2007

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The respondents in this matter, Westpac Banking Corporation and two of its employees, have moved the Court to have judgment entered in their favour pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) in respect of an application brought against them by Andrew Morton Garrett. In the alternative they seek orders that the proceeding be dismissed or stayed pursuant to O 20 of the Federal Court Rules or else that security be provided in respect of their legal costs in the amount of $80,000 and that the proceeding be stayed until that security be given. 2 The application purports to be bought by Mr Garrett in his capacities variously (i) as trustee of the Andrew Garrett Family Trust (No 3); (ii) as trustee for Corporate Investments pursuant to a Declaration of Trust dated 31 December 2006; and (iii) as trustee of the Andrew Garrett Group and Corporate Investments Joint Venture. It seeks orders that the respondents (i) have breached the duty of care owed to him by a bank to its customer; (ii) have breached the Bills of Exchange Act 1909 (Cth); and (iii) have breached the Banking Act 1959 (Cth). It went on to seek an order that Westpac credit to an account of Andrew Morton Garrett a sum of $11,350,000,000,000 and an order for damages. The application claims by way of interlocutory relief: "1. That Westpac give an undertaking as to damages in respect of a arising out of (sic) these proceedings and in particular, with respect to; a. Letter of Offer addressed to the Qantas Board dated 2nd of January 2007 to purchase 100% of the Issued Capital of Qantas Ltd. b. Letter of Offer addressed to the Fosters Group Board dated the 12th January 2007 to acquire 100% of the issued capital of Fosters Group Ltd. c. Letter of Offer addressed to the Suncorp Board dated the 12th January 2007 to acquire 100% of the issued capital of Suncorp Metway Ltd (Post Promina Merger). d. Letter of Offer addresses to the BHP Billiton Board dated 14th January 2007 to acquire 100% of the issues capital of BHP Billiton Ltd. e. Transfer of a further USD$100Billion to the account of the Joint Venture." 3 I have annexed the accompanying Statement of Claim to these reasons: see Attachment A. 4 While the application in form seeks relief against all three respondents (hence the collective reference to Westpac), the Statement of Claim, though complaining of conduct of the second and third respondents, does not in any way plead causes of action against them individually which could give rise to the relief sought. In consequence I will order that summary judgment be given in favour of the second and third respondents. 5 This leaves for consideration the claims against Westpac.