Cachia v. Westpac Financial Services Ltd. [2005] NSWCA 239

New South Wales Court of Appeal

CITATION: Cachia v. Westpac Financial Services Ltd. [2005] NSWCA 239

HEARING DATE(S): 11 July 2005

JUDGMENT DATE: 11 July 2005

JUDGMENT OF: Giles JA at 6; Hodgson JA at 1

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: PROCEDURE - RES JUDICATA - Proceedings for damages for fraud in obtaining judgment - Whether necessary to have judgment set aside.

Salv Laurence Cachia - claimant PARTIES: Westpac Financial Services Ltd. - opponent

FILE NUMBER(S): CA 41041/04

Claimaint in person COUNSEL: Mr. R.J. Weber SC for opponent

SOLICITORS: Mallesons Stephen Jaques, Sydney for opponent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1685/04

LOWER COURT JUDICIAL OFFICER: Master Macready

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41041/04 ED 1685/04

GILES JA HODGSON JA

Monday 11 July 2005 CACHIA V. WESTPAC FINANCIAL SERVICES LTD. Judgment 1 HODGSON JA: In the proceedings which were summarily dismissed by Master Macready, the claimant alleged that a certain judgment in Federal Court proceedings was procured by fraud and he sought damages, being the loss of value of his Federal Court cause of action, the costs he was ordered to pay, and aggravated punitive and exemplary damages. 2 The claimant says the Master was mistaken in his reasons for dismissing the proceedings, because the Master said incorrectly that he was attacking the Federal Court decision whereas he was not doing so. However, the difficulty with that submission is that the claimant cannot obtain damages on the basis that he has lost the value of his Federal Court cause of action or that he should not have been ordered to pay the costs of those proceedings, without having the Federal Court decision set aside, because unless and until that decision is set aside it conclusively establishes that his cause of action had no value and that he was properly ordered to pay costs. Furthermore, aggravated punitive and exemplary damages cannot be recovered in a cause of action for fraud unless some ordinary compensatory damages are established. 3 It is possible to bring proceedings to claim relief on the basis that a previous judgment has been obtained by fraud, but it is necessary in those proceedings to apply to have that judgment set aside, for the reasons I have given; so that ordinarily such proceedings have to be in the Court that actually made the judgment, at least if that Court is a superior court as is the Federal Court. 4 I would add in addition that, in my opinion, the Master gave sound reasons for thinking that the current allegations of fraud could not possibly succeed. 5 For those reasons, in my opinion this application for leave to appeal should be dismissed with costs. 6 GILES JA: I agree and that will be the order. **********