Foyster v Green [2000] NSWSC 189

New South Wales Supreme Court

CITATION : Foyster v Green [2000] NSWSC 189 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3039 of 1999 HEARING DATE(S) : 7 March 2000 JUDGMENT DATE : 22 March 2000

Lloyd Foyster (Plaintiff) PARTIES : John Duncan Green (First Defendant) Australian and New Zealand Banking Group Limited (Second Defendant) JUDGMENT OF : Windeyer J at 1

Ms R Sofroniou (Plaintiff) COUNSEL : submitting appearance (First Defendant) Mr A.W. Street SC with him Ms J Stuckey-Clarke (Second Defendant) G.H. Healey & Co - Newtown (Plaintiff) SOLICITORS : PricewaterhouseCoopers - Legal (First Defendant) Blake Dawson Waldron (Second Defendant) CATCHWORDS : EQUITY - rectification - agreement made on day written document signed and prepared by parties - need for clear proof - both parties had signed deed of confirmation but one did not give evidence of intention - whether third party rights affected - whether rectification purposeless LEGISLATION CITED : Bankruptcy Act 1966, s86, s232, Part X Trade Practices Act 1974 CASES CITED : Foyster v ANZ Banking Group Limited [1999] FCA 1043 DECISION : See paragraph 21-23

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 22 MARCH 2000

3039/99 LLOYD FOYSTER v JOHN DUNCAN GREEN & AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

JUDGMENT General Outline 1 The plaintiff, Lloyd Foyster, seeks rectification of an agreement he made with the first defendant, Mr Green, who was the trustee of his divisible estate, pursuant to a deed of assignment under Part X of Bankruptcy Act 1966. Facts 2 Mr Foyster had banked with the ANZ Banking Group Limited (ANZ) for many years up to 1991. He was a director of Country Properties Pty Ltd which had entered into foreign exchange loans with ANZ, the obligations of that company as borrower being guaranteed by Mr Foyster. The first transactions took place in 1985. There were further borrowings in 1989. The foreign exchange transactions ended in a way which was not uncommon, namely that as a result of changes in currency values, Country Properties became indebted to the ANZ for a very large amount, the repayment of which was guaranteed by the plaintiff. 3 Mr Foyster brought actions in the District Court of New South Wales and in this Court against ANZ. It is not necessary to discuss the District Court action. The action in this Court was No. 13286 of 1991. The statement of claim was filed on 18 June 1991, but not served on the ANZ until 18 June 1993. 4 The deed of assignment under Part X was signed on 19 December 1991. The trustee's certificate that arrangements pursuant to the deed were completed was signed on 26 October 1992. The two actions I have referred to were choses in action which vested in the trustee under the assignment. They remained so vested when the deed came to an end. On 2 July 1993 ANZ issued a notice under s232 of Bankruptcy Act requiring the trustee to make an election about continuing the proceedings. No election was made. On 6 July 1993 the agreement in writing sought to be rectified was made between the plaintiff and the first defendant. The agreement, the effect of which would be an agreement for assignment, was signed at a meeting attended by Mr Foyster, Mr Green and Mr Booth. Mr Booth was an employee of Messrs. Hall Chadwick, Chartered Accountants, where Mr Green was a partner. The agreement was as follows: 6 July 1993 40 Thompson Street TWEED NEADS NSW 2485 John D Green Hall Chadwick Level 14 99 Mount Street NORTH SYDNEY NSW 2060