Australian and New Zealand Banking Group Limited v Aldrick Family Company Pty Limited & Ors [2010] NSWSC 1000

New South Wales Supreme Court

CITATION : Australian and New Zealand Banking Group Limited v Aldrick Family Company Pty Limited & Ors [2010] NSWSC 1000

HEARING DATE(S) : 16/08/10 - 19/08/10, 25/08/10

JUDGMENT DATE : 10 September 2010

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Orders sought by ANZ to be made. Defendants claim to be dismissed.

CATCHWORDS : Banker and customer - ANZ seeks to recover the moneys owing from the defendants pursuant to agreements, guarantees and/or mortgages of land given by the defendants - ANZ also seeks orders for possession of various mortgaged properties - Defendants seek relief from their obligation to pay ANZ because of a claim for damages and various other relief claimed including breach of a duty or contractual term of confidentiality, unconscionability, unconscionable or misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), and the Contracts Review Act 1980 (NSW) - ANZ discloses confidential information of customer to competitor seeking to have customer placed into liquidation - ANZ does not dispute that, in substance, ANZ employee conveyed to competitor that ANZ had concerns about group's present financial condition and that ANZ was contemplating enforcing its security - Customer contends that the disclosure was a breach of the common law duty of confidentiality/secrecy owed by ANZ as a banker to its customer, a breach of a statutory duty not to disclose confidential information to third parties, a breach of an implied contractual term to the same or similar effect contained in each of the relevant agreements, guarantees and mortgages, and otherwise was negligent - Causation - Basic legal principle that plaintiff must prove its loss or damage was caused by the defendant's breach, whether the plaintiff grounds its case in contract, tort or statute - Causation a question of fact - Want of proper claimants - "Prudential principle", said to be derived from Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, denies to members of a company (a fortiori persons with more remote interests) the right to recover for themselves damages for wrongs done to the company, or damages reflective of damages suffered by the company. - Deeds - ANZ requires customers to enter into deed waving customers' rights in respect of the confidential information as a condition for ANZ advancing funds permitting customer to have access to legal advice in the ensuing litigation leading to winding up of customer group - Whether deed enforceable - Whether ANZ's conduct in requiring entry into the deed constituted unconscionable conduct in contravention of s 12 CC of Australian Securities and Investments Commission Act 2001 (Cth) - Whether s 12CC applies to present case - Whether defendants can claim relief under Contracts Review Act 1980 (NSW) in relation to deed - Whether defendants within exclusion contained in s 6(2) of that Act - Misleading or Deceptive conduct - Whether representations in question shown to be misleading or deceptive or likely to mislead or deceive at the time they were made - Whether relevant defendants demonstrated requisite reliance on alleged misleading and deceptive representations - Granting of relief under remedial provisions of Trade Practices Act 1974 (Cth) - Basal proposition that relief must be appropriate to any cause of action established