Commercial Banking Co of Sydney Ltd v RH Brown & Co [1972] HCA 24

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Gibbs JJ. Commercial Banking Co of Sydney Ltd v RH Brown & Co [1972] HCA 24

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 10 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. The facts and circumstances of the case are there sufficiently set out and I do not wish to supplement them.

I agree with my brother's conclusions and his reasons therefor. For myself, I would add that I think there was ample material to support the conclusion that the statements made by the appellant's Perth manager could not have been made honestly having regard to the knowledge of the affairs of Wool Exporters Pty. Ltd. which he undoubtedly had.

Further, the evidence before the trial judge of the practice of bankers in Australia made it proper, in my opinion, to find that the intention of the appenant's manager in issuing the bank report was that it should be communicated in terms to that customer or those customers on whose behalf or in whose particular interest the report had been sought by the Bank of New South Wales. No doubt, had fraud not been present, the appellant would have sought to rely, as against the respondent, on the limitation of responsibility sought to be made in the report. This makes this case, as my brother Menzies observes, quite unlike the case of Hosegood v. Bull [1] .

1. (1876) 36 L.T. 617.

As to damages, I agree that, in fact, it was the terms of the bank report which was relevantly the cause of the delivery of the plaintiff's wool to the carrier for carriage to Wool Exporters Pty. Ltd. It seems to me that the fact, if it be the fact, that a refusal by the plaintiff to deliver the wool would have been a breach of the contract of sale between it and Wool Exporters Pty. Ltd. cannot be relied upon by the appellant to deny the respondent damages for the loss of the value of the wool by reason of the false statements made by its Perth manager.