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. The material before the trial Judge at the conclusion of the bank's case before him provided an overwhelming case that the amount claimed wasowing to the bank. Mr La Fontaine, adhering to his view of the meaning of the particulars of claim, did not give evidence. It was thus inevitable that the trial Judge would proceed to find judgment against him in the amount claimed together with interest. Subsequently the bank began proceedings in the Federal Court to sequestrate Mr La Fontaine's estate. The judgment in the District Court was the foundation of those proceedings. It appears that it was those proceedings which stimulated 2 UNREPORTED JUDGMENTS Mr La Fontaine into seeking to initiate and then press on with an appeal to this Court against Gallen DCJ's judgment with a view to seeking from this Court a stay pending the determination of his appeal. In the discussion today of the application for a stay there has been concentration on the prospects of Mr La Fontaine having any success in his appeal. It has been argued again, as is claimed in the grounds of the notice of appeal, that on a proper construction of the particulars of claim in the District Court the bank had not proved its case and therefore Mr La Fontaine was quite justified in refraining from giving evidence and relying on the legal position which he said had come about. If his view of the particulars of claim and the way the case proceeded before the trial Judge were correct, there might be some prospects of success, although even then of a very technical kind, in his appeal. On looking at the materials, however, that were before the trial Judge and seeing the form of the amended particulars of claim earlier identified, it seems to me that the material the trial Judge allowed into evidence, whichshowed there was $48,499 owing to the bank at the time when it made its demand, was properly before him upon one construction of the particulars of claim and that Mr La Fontaine must have been aware of the Judge's view of the proper construction of the particulars of claim at the time when the evidence which was before the Judge was put before him. Thus at the conclusion of the plaintiff's case the defendant was confronted with evidence showing that he owed the money claimed, the defendant knew that evidence was before the trial judge and knew the trial judge took the view that the particulars were sufficient to justify the leading of the evidence that had been put before him. When asked today what Mr La Fontaine might have been able to say, had he gone into evidence, in answer to the bank's claim his counsel was unable to point to anything in the materials before me. He relied upon what I have already endeavoured to summarise. I agree with him to this extent that the particulars of claim were notably badly drawn for the purpose for which they were used. I do not agree with him, however, that the particulars in the form in which they were left, in the light of the evidence which the judge allowed before the Court, could have left the defendant in any doubt at all of the case which he was being asked to meet. A little later in the discussion of this matter my attention was drawn to an affidavit filed by Mr La Fontaine sworn 19 June 1996 in the bankruptcy proceedings. Paragraph four of that affidavit consists of three sentenceswhich bring into view in an actual statement by Mr La Fontaine the only coherent account of what he might have said had he given evidence before Gallen DCJ. Those three sentences are not in my view, if they were to be accepted in their entirety at a trial, inconsistent with the case of the plaintiff bank. There is no suggestion of any term having been agreed of any requirement on the bank's part to delay demand upon its customer for payment of his overdraft if the bank saw fit to demand repayment. In the absence of some such allegation the position remains as it was before Gallen DCJ, that the bank's ordinary overdraft conditions applied, which are such as to enable the bank to make demand at any time upon its customer the repayment of the amount owing. It, therefore, seems to me that on the materials that I have looked at, both from the point of view of technicality and also from the point of view of substance, the chances of Mr La Fontaine having any success in his appeal are, to put it in a URJ LA FONTAINE v COMMONWEALTH BANK (Priestley AP) 3 conservative way, not sufficient to warrant me in granting a stay of the judgment pending the resolution of the appeal. It, therefore, seems to me that I must dismiss this application with costs. BURTON: Your honour, I have one administrative request. It may be of great assistance to both sides if your Honour's words were available in a typed form to the Federal Court tomorrow morning when the creditor's petition is heard. Is that possible7HIS HONOUR: There's been a sound recording of what I have said and the operator will have heard your request. I cannot do any more than ask the sound recording service to do what it can to have a transcript available by tomorrow morning. Orders accordingly.