Kelly v Australia and New Zealand Banking Group Limited [2014] NSWSC 426

Supreme Court New South Wales

Medium Neutral Citation: Kelly v Australia and New Zealand Banking Group Limited [2014] NSWSC 426 Hearing dates: 8/7/13-18/7/13; 15/8/13 Decision date: 11 April 2014 Jurisdiction: Civil Before: Hall J Decision: (1) There was no contract whereby the defendant (ANZ Banking Group Limited) agreed to place the plaintiff on its panel of quantity surveyors if the plaintiff and his wife took out loans with the defendant. (2) The defendant did not engage in conduct that was misleading or deceptive, or likely to mislead or deceive. (3) Proceedings be re-listed at 2.00pm on 22 April 2014 for the purpose of making any further directions and final order(s). Catchwords: CONTRACT LAW - alleged breach of contract - alleged misleading and deceptive conduct pursuant to s 52 of the Trade Practices Act 1974 (Cth) - whether the defendant promised to appoint the plaintiff's company to its panel of quantity surveyors in exchange for the plaintiff remaining a customer of the defendant and taking loans from the defendant - whether this promise constituted a contract between the plaintiff and the defendant - neither the defendant nor its representatives made the alleged promise - no contract to the effect pleaded in the Statement of Claim - the defendant did not engage in conduct that was misleading or deceptive or likely to mislead or deceive - evidence fabricated by the plaintiff - cross-claim by the defendant in respect of monies owed in respect of the loans to be heard and determined Legislation Cited: Evidence Act 1995 (NSW) Electronic Transactions Act 2000 (NSW) Limitation Act 1969 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 China-Pacific SA v Food Corporation of India (The Winson) [1981] QB 403 Commonwealth Bank of Australia v Serobian [2009] NSWSC 302 Legione v Hateley (1982) 152 CLR 406 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 VPlus Holdings Pty Ltd v Bank of Western Australia Ltd (2012) 91 ACSR 545 Watson v Foxman (1995) 49 NSWLR 315 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 Texts Cited: The Revised Professional Conduct and Practice Rules 1995 Category: Principal judgment Parties: David Kelly (Plaintiff/First Cross-Defendant) Australia and New Zealand Banking Group Limited (Defendant/Cross-Claimant) Norizah Kelly (Second Cross-Defendant) Representation: Counsel: J Button, solicitor (Plaintiff/Cross-Defendants) AJ McInerney SC; K Tang (Defendant/Cross-Claimant) Solicitors: Longmores Lawyers & Property Conveyancers (Plaintiff/Cross-Defendants) Gadens Lawyers (Defendant/Cross-Claimant) File Number(s): 2011/201022