Aneve Pty. Limited & Ors. v. Bank of Western Australia Limited [2005] NSWCA 441

New South Wales Court of Appeal

CITATION: Aneve Pty. Limited & Ors. v. Bank of Western Australia Limited [2005] NSWCA 441

HEARING DATE(S): 19 and 20 September 2005

JUDGMENT DATE: 12 December 2005

JUDGMENT OF: Hodgson JA at 1; Santow JA at 76; Bryson JA at 77

DECISION: Appeal dismissed with costs.

CATCHWORDS: TRADE PRACTICES - Misleading, deceptive and unconscionable conduct - Primary judge not satisfied that alleged representations made, or that, if made, they were relied on - Whether errors or deficiency of reasons shown

Briginshaw v. Briginshaw (1938) 60 CLR 336 CASES CITED: Helton v. Allen (1940) 63 CLR 691 Watson v. Foxman (2000) 49 NSWLR 315

Aneve Pty. Limited - 1st appellant Aniello Iannuzzi - 2nd appellant PARTIES: Paraskevi Iannuzzi - 3rd appellant Bank of Western Australia Limited - respondent

FILE NUMBER(S): CA 40670/04

Mr. B.M. Toomey QC with Mr. A.G. Diethelm for appellants COUNSEL: Mr. B. McClintock SC with Mr. R.J. Brender for respondent

R.F. Bergagnin & Co., Marrickville for appellants SOLICITORS: Blake Dawson Waldron, Sydney for respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED1063/03

LOWER COURT JUDICIAL OFFICER: Palmer J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40670/04 ED 1063/03

HODGSON JA SANTOW JA BRYSON JA

Monday 12 December 2005 ANEVE PTY. LTD. & ORS. V. BANK OF WESTERN AUSTRALIA Judgment 1 HODGSON JA: On 20 July 2005, Palmer J gave reasons for judgment in proceedings brought by the appellants (Dr. Iannuzzi, his wife Dr. Tsironis and their company Aneve) against the respondent (BankWest) seeking relief in relation to a guarantee and indemnity given to BankWest and an associated Performance Bond issued by St. George Bank Limited (St. George), on the basis of misleading or deceptive or unconscionable conduct in breach of the Trade Practices Act 1974, in which proceedings BankWest cross-claimed for a declaration that it was entitled to call on the Performance Bond, for interest and for damages pursuant to an undertaking as to damages. On the basis of those reasons and further reasons given on 29 July 2005, the primary judge gave judgment for BankWest on the appellants' Statement of Claim, made the orders sought by BankWest in its cross-claim, and ordered the appellants to pay the costs of the proceedings on an indemnity basis. The appellants appeal from those orders.