Williams & Ors v Commonwealth Bank of Australia [1999] NSWCA 345

New South Wales Court of Appeal CITATION : Williams & Ors v Commonwealth Bank of Australia [1999] NSWCA 345 FILE NUMBER(S) : CA 40401/98 HEARING DATE(S) : 18-19 February 1999 JUDGMENT DATE : 27 September 1999

Peter James Williams John Reginald Williams Caroline Mary Williams PARTIES : Wendy Joan Williams Veronica Clare Williams v Commonwealth Bank of Australia JUDGMENT OF : Mason P; Priestley JA; Sheppard AJA

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : Comm D 50007/97 LOWER COURT JUDICIAL OFFICER : Bainton J

COUNSEL : A: RE Dubler R: RG Forster SC SOLICITORS : A: Hegarty & Elmgreen, Sydney R: Corrs Chambers Westgarth, Sydney CATCHWORDS : APPEAL AND NEW TRIAL - Errors made by trial judge in making findings of fact - Errors demonstrated by documents in evidence or by reference to transcript - Whether judge misused his advantage as trial judge; MISREPRESENTATION - Whether statement sent by solicitor for one party to the solicitor for other party for the purposes of mediation capable of amounting to representation that person to whom statement attributed had approved it or a representation that the statement was one which that person had not refused to sign - Whether sending of statement evidence of misleading or deceptive conduct - Trade Practices Act 1974 (Cth), s52; LIMITATIONS - Whether cause of action under s52 of Trade Practices Act barred because it had accrued more than 3 years before institution of cross-claim by which appellants brought proceedings - Trade Practices Act, s82(2), s87(1CA)(b); AFFIRMATION - Whether facts and circumstances relied upon by bank demonstrated that appellants had affirmed the settlement achieved at the mediation - Whether court on appeal unable to make findings because of miscarriage of trial and consequent lack of findings ACTS CITED : Trade Practices Act 1974 (Cth) DECISION : Appeal allowed with costs