European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

EUROPEAN BANK LIMITED APPELLANT

AND

ROBB EVANS OF ROBB EVANS & ASSOCIATES RESPONDENT

European Bank Limited v Robb Evans of Robb Evans & Associates

[2010] HCA 6

10 March 2010

S272/2009

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 April 2009 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

R J Webb SC with D T Kell for the appellant (instructed by Baker & McKenzie)

A S Martin SC with G M Drew for the respondent (instructed by Norton Rose Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

European Bank Limited v Robb Evans of Robb Evans & Associates

Damages – Assessment – Remoteness – Usual undertaking as to damages – Supreme Court Rules 1970 (NSW) ("the Rules") – Respondent gave usual undertaking as to damages to court pending application for special leave to appeal to High Court – Court ordered money to which appellant otherwise entitled be paid into court in United States dollars – Appellant would have converted money from United States dollars to euros but for the order – Nature of "usual undertaking as to damages" in Pt 28 r 7(2) of the Rules – Relevance of contractual remoteness principles in Hadley v Baxendale (1854) 9 Exch 341 [156 ER 145] – Equitable origin of usual undertaking as to damages in Pt 28 r 7(2) of the Rules – What is "just and equitable" or "fair and reasonable" in the circumstances – Whether loss of preferential movement in exchange rates and interest flowed directly from order – Whether kind of loss could have been foreseen by respondent.