LA FONTAINE v COMMONWEALTH BANK [1996] NSWCA 309

LA FONTAINE v COMMONWEALTH BANK SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY AP 21 October 1996

[1996] NSWCA 309

Priestley AP. This is an application for a stay of a judgment which was given by his Honour Judge Gallen of the District Court on 28 March this year. The judgment was in favour of the Commonwealth Bank against Mr La Fontaine.

The Judge found that the amount claimed by the bank to have been owing at a particular date of $48,499 was owing on that date and gave judgment in the bank's favour for a total of $54,721.76, the difference between the amount claimed and that amount being interest.

Before Gallen DCJ there was a statement of claim by the bank which is not very clear and has some internal inconsistencies. Mr La Fontaine put a particular construction on the statement of claim and asserted before the Judge that what was actually claimed had not been proved or, to put it more accurately perhaps, that the bank's own evidence showed that the debt that itwas claiming in the statement of claim had been paid by Mr La Fontaine and that the bank's claim must therefore fail.

Essentially that matter was raised in grounds of appeal filed after some considerable delay by Mr La Fontaine. Mr La Fontaine's position, both before the trial Judge and as disclosed by his notice of appeal, was that there was no need for him to give evidence because the actual claim being made by the bank had to fail and should have been found by the Judge to have failed on the evidence before him.

That claim by Mr La Fontaine is based upon a particular reading of the particulars of claim in their amended form, which appear in the documents before me at p 21 of the numbered pages of an affidavit sworn by Mr J A Rose on 18 October 1996 and filed in this Court.

Other materials before the Court today show that the trial Judge must have taken a different view of the meaning of the particulars of claim as pleaded in the amended form I have just sought to identify. The trial Judge, basing himself upon his view of the meaning of the particulars of claim, allowed evidence to be given which showed that the bank had provided overdraft facilities to Mr La Fontaine under which at the date of demand by the bank for their repayment, which was a short time before the commencement of the District Court proceedings, Mr La Fontaine owed the bank the sum of $48,499 claimed in the proceedings.