Mackenzie & Anor v Albany Finance Ltd [2003] WASC 100 - WASC 2003 case summary — Zoe

Parties

Applicant/Plaintiff:

# Mackenzie & Anor

Respondent/Defendant:

Albany Finance Ltd \[2003\] WASC 100

Legislation Cited (4)

Act 1986(WA)

Money Act 1990(WA)

(Administration) Act 1984

Practices Act 1974

Cases Cited (86)

Mackenzie & Anor v Albany Finance Ltd [2003] WASC 100 (30 May 2003)

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2000] FCA 1376

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2000] FCA 2; (2000) 96 FCR 491

Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365; (2000) 104 FCR 253

Bank of New South Wales Savings Bank Ltd v Fremantle Auto Centre Pty Ltd [1973] WAR 161

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247

Beach Petroleum NL v Johnson [1993] FCA 283; (1993) 115 ALR 411

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) [1939] HCA 23; (1939) 62 CLR 464

Cameron v Qantas Airways Ltd [1995] FCA 1304; (1995) 55 FCR 147

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Hart v Mossensons (a firm) [2002] WASCA 110

Hurley v McDonald's Australia Ltd [1999] FCA 1728; (2000) ATPR 41-741

Lloyd v Grace Smith & Co [1912] UKHL 1; [1912] AC 716

Mann v Hulme [1961] HCA 45; (1961) 106 CLR 136

Murphy v Lawrence [1960] NZLR 772

National Commercial Banking Corp of Australia Ltd v Batty [1986] HCA 21; (1986) 160 CLR 251

Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538

Parsons v The Queen [1999] HCA 1; (1999) 195 CLR 619

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246

Re Malley SM; Ex parte Gardner [2001] WASCA 29

Smith v Commercial Banking Co of Sydney Ltd [1910] HCA 72; (1910) 11 CLR 667

Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410

7 It was accepted by the parties that the plaintiffs bear the onus of proving that they made the three deposits denied by the defendant and the defendant bears the onus of proving that the admitted deposits were repaid: Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560 at 562-570; Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567 at 577.

56 However, even if the plaintiffs' cheque was made payable to the defendant and was delivered into its possession (as to which, it is necessary to consider whether the person receiving the cheque was acting within the scope of his or her authority to do so and see ss 3(1), 25, 27 and 28 of the Cheques Act 1986 (Cth)) that does not establish a deposit with the defendant. The relationship between a person who applies to a financial institution to make a deposit which deposit is accepted by the financial institution is contractual. If the financial institution accepts the deposit, the customer becomes the unsecured creditor of the financial institution: Croton v R [1967] HCA 48; (1967) 117 CLR 326.

245 However, the banker and customer relationship is regarded as an exception to the general rule relating to simple contracts. It is now regarded as settled law that, subject to any express term to the contrary, it is an implied term of a contract between a banker and its customer that moneys owed by a banker on a current account do not become due and payable until a demand is made for the money: Joachimson v Swiss Bank Corporation (supra), Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478; Re Australia and New Zealand Savings Bank Ltd; Mellas v Evriniadis [1972] VicRp 79; [1972] VR 690; Megrah M and Ryder F R, "Paget's Law of Banking", 9th ed, Butterworths, London, 1982, p 79; Weaver and Craigie, The Law Relating to Banker and Customer in Australia, Vol 1, pars 6.10 and 6.20; The Laws of Australia, Vol 18.4, par 4.

247 It is the case that in Joachimson (supra) there was evidence as to the custom and useage of banks at the relevant time. Expert opinion evidence was adduced as to the practice of bankers which was never in fact to pay without demand. However, over 80 years later and subject to any express term to the contrary, the implied term that it is a condition precedent for repayment that there be a demand from the customer to the bank is now a generic term implied by law in contracts that belong to that class. In such a situation, whenever a contract can be said to be of a particular class, such as contracts between banks and customers, the court implies any term which is inherent in that class: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 345; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 420.

258 Further, I note for the record that no issue was raised in this action as to whether the plaintiffs could trace their funds, whether into or out of the LKJA trust account (as to which, see Re Global Finance Group Pty Ltd (in liq) [2002] WASC 63). What is in issue is whether funds actually paid to the plaintiffs or to their use reduced the defendant's indebtedness the subject of deposit account 346.

263 The payment by LKJA for the shares raises different issues. A payment made by a third party stranger to a creditor without the authority or subsequent ratification of the payment by the debtor does not discharge the debtor's indebtedness to the creditor: Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] QB 677; Goff & Jones, "The Law of Restitution", 5th ed, Sweet & Maxwell, London, 1998, p 17.

270 On the assumption that the defendant's concession was correctly made and the defendant has been in breach of the Act, my preliminary view is that the Act provides a statutory procedure for circumventing the policy and effect of the Limitation Act 1935 (WA) that does not expressly or impliedly prevent a defendant from pleading a limitation defence to a debt or contract claim in an action, in which case, it would not be unconscionable in equity or under the TPA to do so: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 8. Whether or not the plaintiffs would have a claim (or counterclaim) for enforcement or breach of the defendant's statutory duties is not something on which I propose to comment.

273 I do not regard the defence of res judicata as arguable in this case. The judgment in question was a judgment in personam not in rem. Accordingly, the doctrine of res judicata binds only the parties to the earlier action and their privies: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. The defendant was not a party to the District Court action nor is it the privy of Mr and Mrs Jamieson: Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) [1993] FCA 342; (1993) 43 FCR 510 at 512, 526 and 539.

Gordon v MacGregor [1909] HCA 26; (1909) 8 CLR 316

Hill v Ziymack [1908] HCA 13; (1908) 7 CLR 352

Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) [1993] FCA 650; (1993) 47 FCR 81

Re Madden as Official Liquidator of Aquanaut Constructions Pty ltd (in liq) [2001] NSWSC 1051

Sanders v Snell [2003] FCAFC 150

Schmidt v Gilmour [1988] WAR 219

Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58(S)

(2000) 96 FCR 491

(2000) 104 FCR 253

(1998) 194 CLR 247

(1993) 115 ALR 411

(1939) 62 CLR 464

(1996) 186 CLR 71

(1995) 55 FCR 147

(2000) 23 WAR 159

(1999) 21 WAR 226

(1997) 18 WAR 384

(1993) 10 WAR 497

(1961) 106 CLR 136

(1986) 160 CLR 251

(1995) 184 CLR 538

(1999) 195 CLR 619

(1981) 147 CLR 589

(1996) 66 FCR 246

(1910) 11 CLR 667

(1978) 139 CLR 410

(1956) 99 CLR 560

(1983) 1 NSWLR 1

(1967) 117 CLR 326

(1986) 41 SASR 380

(1982) 149 CLR 337

(1995) 185 CLR 410

(1991) 4 WAR 213

(1972) 46 ALJR 563

(1950) 81 CLR 446

(1993) 43 FCR 510

(1990) 2 WAR 477

(2002) 26 WAR 323

(1993) 9 WAR 56

(1992) 8 WAR 400

(1909) 8 CLR 316

(1995) 12 WAR 62

(1908) 7 CLR 352

(2000) 203 CLR 503

(1990) 170 CLR 534

(1993) 47 FCR 81

(1999) 20 WAR 474

(2000) 174 ALR 53

(1994) 13 WAR 323

(1916) 22 CLR 490

(1993) 10 WAR 569

Mackenzie & Anor v Albany Finance Ltd [2003] WASC 100

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (32 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (86)

Mackenzie & Anor v Albany Finance Ltd [2003] WASC 100 (30 May 2003)