National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust - [2016] NSWCA 242 - NSWCA 2016 case summary — Zoe

NSWNSWCA

National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust

[2016] NSWCA 242

Court of Appeal (NSW)|2016-06-08|Before: Macfarlan JA, White J

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2016-06-08

Before

Macfarlan JA, White J

Catchwords

148 CLR 304 Council of the City of Sydney v West [1965] HCA 68
101 CLR 298 Keighley, Maxsted & Co v Durant [1901] AC 240 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
4 CLR 379 Rowe v B & R Nominees Pty Ltd [1964] VR 477 Sun Line Special Shipping Company Inc v Fay [1988] HCA 32
38 CLR 48 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Toll (FGTC) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52

Source

Original judgment source is linked above.

Catchwords

148 CLR 304 Council of the City of Sydney v West [1965] HCA 68101 CLR 298 Keighley, Maxsted & Co v Durant [1901] AC 240 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 114 CLR 379 Rowe v B & R Nominees Pty Ltd [1964] VR 477 Sun Line Special Shipping Company Inc v Fay [1988] HCA 3238 CLR 48 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Toll (FGTC) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52219 CLR 165 Wallaby Grip Ltd v QBE Insurance (Australia) LtdStewart v QBE Insurance Australia (Australia) Ltd [2010] HCA 9240 CLR 444 West v Commercial Bank of Australia Limited [1935] HCA 14

Judgment (24 paragraphs)

[1]

Background Facts

The following account is largely based on findings by the primary Judge and on evidence referred to in the parties' joint chronology.
In March 2011, Ms Dionys was expecting to receive the sum of $493,000.00 from a divorce settlement.
In early 2011, Ms Dionys met regularly with Mr Dimaris, whom she described in evidence as her "cousin's cousin" and whom she had known since they were children. At one of the meetings with Mr Dimaris, Ms Dionys told him that she was expecting to receive her settlement moneys. Mr Dimaris advised Ms Dionys to open an account at the Marrickville branch of the NAB, which was near Mr Dimaris' office, in order to deposit the funds she expected to receive. Mr Dimaris was known to a number of NAB's staff at the Marrickville branch.

[2]

Primary Judgment

Although the Primary Judgment was delivered some twelve months after the trial, it reads very much like an ex tempore judgment. It must be said that the judgment does not do full justice to the detailed submissions made by the parties, and in some respects, is not easy to follow.
The primary Judge recorded that NAB's case was that Mr Dimaris had been authorised by Ms Dionys to operate the Account or, alternatively, that Mr Dimaris was Ms Dionys' agent. His Honour noted that Mr Dimaris swore an affidavit which had been read in NAB's case and that his Honour had refused NAB's application to withdraw the affidavit. Despite this, Mr Dimaris had not given oral evidence and had not been cross-examined.
The primary Judge referred to evidence that some documents "appear to have disappeared in what is the bank's computer system of records storage". One of those was the document created within the Marrickville branch that gave Mr Dimaris authority to operate the Account. His Honour accepted that NAB's officers had attempted to locate further documents from NAB's "digital computerised system where records are kept in cyber world", but had been unable to obtain any further documents other than those that had been produced.
The primary Judge identified a significant issue in the case to be the time at which Ms Dionys first complained to NAB that funds had been withdrawn from the Account. His Honour said that Ms Dionys: "… states clearly that she went to [the] Maroubra branch and had a conversation with a teller there and that is where she made her initial complaint, however she had no record and was unable to, in terms of any precision, identify the date and identify or give any indication as to the identity of the person to whom she made the complaint."
The primary Judge accepted that Mr Benincasa sought to obtain a detailed statutory declaration from Ms Dionys and asked her to report the matter to policy. It was common ground, however, that Ms Dionys made no complaint to the police.
The primary Judge then summarised the evidence, including the contents of Mr Dimaris' affidavit. His Honour pointed out that there was no evidence from the recipient of the funds from the First Withdrawal or from the bank officer, Mr Nguyen, who had apparently authorised the transaction. While Mr Nguyen was no longer employed by NAB, he was apparently still working in the Sydney area and no explanation had been given for NAB's failure to call him. His Honour also observed that NAB had given no explanation for failing to call Mr Dimaris to give oral evidence.
His Honour noted that NAB attacked Ms Dionys' credibility and submitted that she had told deliberate lies. NAB had contended that Ms Dionys had authorised Mr Dimaris to operate the account either as principal or agent. His Honour thought that there was "substance in the submissions" made on behalf of NAB. In his Honour's view, however, the attack on Ms Dionys' credibility had to be assessed in the light of NAB's failure to call the two key witnesses. Furthermore, "effectively all the documents, save for the withdrawal slip of 19 April [were] consistent with her [evidence]". In these circumstances, his Honour found that he was: "… bound to accept her evidence with the reservations expressed as frankly there is no evidence that came before the Court that contradicts her, save for Mr Mitri." His Honour then gave reasons for concluding that the evidence of Mr Mitri, a solicitor who acted for MD Asset in litigation against financiers of the Emerald project, did not assist NAB's case.
The primary Judge rejected NAB's submission that a finding should be made that the opening of the Account was at Mr Dimaris' instigation and was done in order to enable him to use the Account in a manner he felt was within his authority. Such a finding could not be made without Mr Dimaris' evidence being tested or Mr Nguyen giving oral evidence. The documentation, the withdrawal of funds from the Account within three working days and the transfer of the funds to an account obviously known to Mr Nguyen led to the conclusion "that [Ms Dionys] did not authorise the withdrawal and was unaware of it".
His Honour found that although a signature on the Second Withdrawal slip appeared to have some similarities with Ms Dionys' signature, the Second Withdrawal occurred without her involvement and without her authority.
The primary Judge next addressed NAB's reliance on cl 5.18 of the NAB Conditions. He identified the factual issue to be whether Ms Dionys had contacted NAB at any time prior to her complaint to Mr Brown in October 2011. His Honour said that there was a "possibility of an earlier occasion and perhaps an informal discussion" with a bank officer less senior that Mr Brown. NAB had submitted that Ms Dionys' evidence that she had complained to a person at the Maroubra branch of NAB was unreliable and should not be accepted. His Honour observed that: "[in] this regard the Court again has little evidence to proceed with other than that of [Ms Dionys] and I have no doubt that [she] did not consider [cl 5.18]."
The primary Judge continued as follows: "Mr Ahmad indicated it was his usual practice to give all new customers opening new accounts the bank's document, which is clear in its terms, and to require them to know what is in the document and to read it. The additional submission is that common sense would have said that if moneys had been taken without authority that a person would react spontaneously and without delay. However, again the Court has only [Ms Dionys'] evidence on this matter and although it is impossible for the bank by October 2011 to know precisely what had happened, the question [that] arises is could there have been some misunderstanding by other bank employees before the investigative branch became involved. … I find that [Ms Dionys] most likely did make an enquiry of a branch but did not make the requisite complaint until October 2011, a formal complaint. Perhaps when someone on her behalf has contacted Randwick branch, Mr Brown, as indicated, was in a section of the bank where he did not, or where I have found that he did not deal with the public and it was a special branch to deal with problem accounts and possible frauds. Mr Brown did not give evidence and again what the Court is asked to do is to look at the records and to make the finding that [Ms Dionys] should not be accepted in respect of her evidence. Considering the two situations I am of the view that I should accept [Ms Dionys'] version, that she did at a time after April 2011 but some month or months before 12 October 2011 at least informally contact the bank and that contact was made in circumstances after she had sought to find out what happened with the Emerald development." [Emphasis added.]
Finally, his Honour rejected NAB's contention that Ms Dionys ratified Mr Dimaris' actions in withdrawing funds from the Account. His Honour somewhat cryptically said that: "[t]he signatures on the cheques came without the authority, as I have already found and thus in respect of West v Commercial Bank of Australia [4] and the other authorities that I was referred to are not relevant."

[3]

Is NAB's Argument Open?

Ms Dionys' Notice of Contention raises the question of whether cl 5.18 of the NAB Conditions formed part of the agreement between NAB as the banker and Ms Dionys as the customer. NAB contends that it is not open to Ms Dionys to raise this issue for the first time on appeal.
NAB's contention overlooks the pleadings in which the issue was squarely identified. NAB pleaded in its Amended Defence that it was a term of the agreement (cl 5.18) that Ms Dionys would promptly review her statement of account and inform NAB of any suspected unauthorised transaction. NAB alleged that Ms Dionys' failure to comply with cl 5.18 caused her to lose any rights she may have had in relation to the withdrawal of $492,000 from the Account. Ms Dionys' Amended Reply denied NAB's allegation that the NAB Conditions formed part of the agreement between the parties. Ms Dionys also pleaded that if the NAB Conditions formed part of the agreement, cl 5.18 did not apply to her claim in respect of the First Withdrawal.
NAB clearly appreciated that it had to show that cl 5.18 had been incorporated into the agreement with Ms Dionys that governed conduct of the Account. [5] The factual foundation for NAB's case on cl 5.18 was Mr Ahmad's evidence that, in accordance with his usual practice, he handed Ms Dionys the Booklet containing the NAB Conditions when opening the Account on 14 March 2011. Ms Dionys denied that Mr Ahmad told her that there were terms and conditions applicable to the Account or that she had received the Booklet from Mr Ahmad. Both Mr Ahmad and Ms Dionys were cross-examined on their evidence. Ms Dionys adhered to her account, while Mr Ahmad was adamant that there was no possibility that he departed from his invariable practice when dealing with Ms Dionys. There was therefore a conflict in the evidence.
The parties' submissions at the trial concentrated on whether his Honour should accept Ms Dionys' denial that she received the Booklet. However, in the course of argument, reference was made to the question of whether cl 5.18 had been incorporated into the agreement (assuming, contrary to Ms Dionys' evidence, that she was given the Booklet). In an exchange between counsel for NAB and the primary Judge, reference was made to the "ticket cases" and to the requirement that, in some circumstances, unusual terms must be brought to the customer's attention (Black, 388-389). [6] During the exchange, counsel for NAB appeared to accept that even if Mr Ahmed's evidence was preferred to that of Ms Dionys, there remained an issue as to whether cl 5.18 had been incorporated into the agreement between NAB and Ms Dionys. While Ms Dionys' counsel did not refer to the relevant authorities in argument, he did not concede that if Ms Dionys' evidence was rejected, the Court had to conclude that cl 5.18 formed part of the agreement.
In my view, although the incorporation issue did not attract the attention at the trial that it warranted, it remained a live question. I therefore do not accept NAB's submission that Ms Dionys should not be permitted to raise the issue on appeal.

[4]

Submissions

The primary Judge did not resolve the factual dispute which was the focus of the evidence and the parties' submissions. Instead his Honour appears to have assumed that cl 5.18 of the NAB Conditions had been incorporated into the agreement but concluded that NAB was unable to rely on the provision to protect it from Ms Dionys' claim. His Honour based this conclusion on his finding that Ms Dionys made an enquiry at NAB's Maroubra branch, at least informally, "some month or months before 12 October 2011" (that being the date of Mr Brown's internal enquiry). This finding, in his Honour's view, precluded NAB from establishing that Ms Dionys had breached cl 5.18 by failing to review her statement of account "promptly" and informing NAB of any unauthorised transactions.
In this Court, Ms Dionys submitted that the primary Judge failed to apply the correct test to determine whether cl 5.18 had been incorporated into the agreement between the parties. Mr Wood, who appeared with Mr Brown for Ms Dionys, contended that his Honour should have made a finding as to when the agreement between the parties was concluded. On the evidence, so he argued, the agreement was concluded when Ms Dionys signed the Authority Card or, at the latest, when Mr Melisi countersigned the Authority Card on behalf of NAB. From that point it was not open to NAB unilaterally to vary the agreement by adding new terms, whether by handing Ms Dionys the Booklet containing the NAB Conditions or otherwise.
NAB submitted that the evidence established that the Booklet containing the NAB Conditions was given to Ms Dionys while Mr Ahmad was opening the Account. According to Mr Reynolds, who appeared for NAB, a reasonable observer would have concluded that the parties did not arrive at a final agreement until Mr Ahmad handed the Booklet to Ms Dionys. On this view, even if Ms Dionys signed the Authority Card before she was given the Booklet, the agreement was not finalised until she had a reasonable opportunity to consider whether the NAB Conditions were acceptable. Her failure to communicate a rejection of the NAB Conditions amounted to acceptance of the terms and conditions included in the Booklet.
Mr Reynolds also submitted that NAB did not have to show that it had taken reasonable steps to bring cl 5.18 to the attention of Ms Dionys. He said that cl 5.18 is not an exemption clause, but merely a provision requiring notification of claims within a reasonable period. The provision could not be regarded as particularly onerous or unusual. Moreover, it would have been plain to Ms Dionys that the booklet contained terms and conditions and that she was not obliged to use the Account until such time as she had perused the booklet. By depositing funds into the account several days later, and failing to communicate rejection of the NAB Conditions, Ms Dionys demonstrated that she accepted the NAB Conditions.

[5]

Burden of Proof

In assessing the evidence, it is necessary to determine which party has the burden of proving whether or not cl 5.18 was incorporated into the agreement. I did not understand Mr Reynolds to dispute that since NAB pleaded Ms Dionys' failure to comply with cl 5.18 in its Amended Defence, the burden of proving cl 5.18 formed part of the agreement falls on NAB. In any event, my view is that the onus is on NAB to prove the facts necessary to establish that cl 5.18 was incorporated into the agreement.
The authors of Cheshire and Fifoot's Law of Contract [7] point out that normally the plaintiff alleging a breach of contract bears the onus of proving all elements necessary to establish the defendant's liability. However, they say a special rule applies to a "limiting term", where the effect of such a term "would defeat the legitimate transactional expectations of the parties". Thus a defendant who denies liability on the basis of a "limiting term" bears the onus of showing that the term was incorporated in the relevant contract. These propositions are supported by the authorities, both in Australia [8] and England. [9]
In my view, cl 5.18, although it does not purport to exclude NAB from liability in all circumstances, is a "limiting term" for the purposes of this principle. The relationship between a banker and a customer maintaining an account in credit is essentially that of debtor and creditor. Unless the customer authorises the bank to make payments in reduction of its undebtedness, or the customer is estopped from denying such authority, the debt remains. [10] Broadly speaking, there are only two exceptions to this principle. [11] First, a customer must exercise reasonable care in drawing cheques to avoid facilitating fraud and forgery [12] and, secondly, a customer must notify the bank of a forgery as soon as the customer becomes aware of the forgery. [13] Attempts by banks to persuade courts to expand the scope of the customer's duties, otherwise than through contractual provisions, have proved unsuccessful. [14]
In imposing a duty on the customer to review a statement of account "promptly" and to inform NAB of any transaction that the customer "suspects" is unauthorised, cl 5.18 significantly expands the duties owed by a customer to a bank under the general law. A customer who fails to comply with cl 5.18 is at risk of losing the right to claim compensation from NAB for losses sustained in consequence of unauthorised transactions on his or her account. Clause 5.18 therefore goes beyond the general law by imposing substantially more onerous duties on customers and limiting the rights of customers to claim compensation in respect of unauthorised transactions facilitated by NAB. As such, cl 5.18 is properly characterised as a "limiting term" for the purpose of determining whether NAB bears the onus of proving that cl 5.18 was incorporated into the agreement between it and Ms Dionys.

[6]

The Evidence

The primary Judge did not make findings as to the precise course of events that led to NAB opening the Account on 14 March 2011. In particular, as I have explained, he made no finding as to whether Mr Ahmad gave Ms Dionys a copy of the Booklet during their meeting at the Marrickville branch.
A rather faint submission was made on Ms Dionys' behalf that this Court should accept her evidence that she was not given the Booklet. However, any such finding would require an assessment of Ms Dionys' credibility, which the Court is not in a position to undertake. I therefore approach the evidence on the assumption that, contrary to Ms Dionys' evidence, she was given a copy of the Booklet containing the NAB Conditions during her visit to the Marrickville branch on 14 August 2011.
Mr Ahmad said in his affidavit that he had no specific recollection of opening the Account on 14 March 2011. However, he gave evidence of his standard practice as follows: "12. … when opening a business cheque account for a customer during the [relevant] Period, it was always my practice to provide the customer with three NAB documents, being: a. A booklet entitled NAB Business Products Terms and Conditions (as in force on the date I was opening the account with the customer); b. A booklet entitled Privacy Notification (as in force on the date I was opening the account with the customer); and c. A document entitled Business Banking Fees (as in force on the date I was opening the account with the customer). 13. When handing the booklet entitled NAB Business Products Terms and Conditions to the customer it was also my practice during the Period to always say words to the effect: 'You can also access these terms and conditions online at the NAB website.' 14 I have no reason to believe that I would have deviated from my practice when dealing with Ms Dionys on 14 March 2011. 15 Based on my usual practice as described above, I believe that on 14 March 2011, when the Account was opened, I handed to Ms Dionys a booklet entitled NAB Business Products Terms and Conditions Effective 1 May 2010 (together with the then current versions of the booklets referred to in [12(b) to (c)] above). [Emphasis added.]
Beyond explaining that he was based at the inquiry desk (that is, not behind a counter) and denying a suggestion that he might have departed from his standard practice when opening the Account, Mr Ahmad's oral evidence carried the matter no further.
Mr Morrow, an officer of NAB experienced in opening customer accounts, gave evidence that it was standard practice at NAB "for a copy of any standard terms applicable to an account to be provided to the customer upon the account being established. Mr Morrow also said that it was standard practice for the Account Authority Card to be completed and signed by the applicant "before the account can be permitted to [operate]".
The Authority Card completed on 14 March 2011 and signed by Ms Dionys identified the Account Holder Details (Ms Samantha Dionys as Trustee for Angel Family Trust), the Customer Number, the Authorised Person (Ms Samantha Dionys) and the Account number. Under the heading "Account Holder Authorities", the following terms appeared: "Account Authorities: I/We authorise each person named in Section B [that is, Ms Dionys] to do the following, on my/our behalf, in relation to each account or service which is the subject of this authority: - give instructions in relation to cheques, withdrawals, periodical payment/debit authorities and, where nominated, electronic NAB services; - overdraw the account(s) to any extent permitted by NAB (NAB will treat casual overdrafts as applications for credit); - anything else the terms and conditions of the account or service, or this authority says they can do."
The reverse page of the Authority Card set out a number of "Acknowledgements and Consents". The customer acknowledged that she could terminate the authority only by written notice to NAB and that NAB could elect not to follow instructions in a number of specified circumstances. The customer also authorised NAB to disclose information and make reports to third parties in certain circumstances.
Mr Melisi signed the Authority Card as the "checking officer", thereby certifying that all signatories satisfied the identification requirements. He signed in a section of the document marked "NAB use only - Must be completed by Bank establishing … account(s)".
The statement of account received later by Ms Dionys shows that the Account was in fact opened on 14 March 2011.

[7]

The Booklet

The Booklet containing the NAB Conditions which (I have assumed) was given to Ms Dionys on 14 March 2014 is entitled "NAB Business Products Terms and conditions". It is said to be "Effective 1 May 2010".
The Booklet contains an index of two pages and 71 pages of content, divided into seven Parts. Under the heading "About this booklet" on page 1, the following appears: "This booklet forms part of the terms and conditions for NAB Business Products, Electronic Banking, NAB Internet Banking and NAB Telephone Banking along with the following documents: • Business Banking Fees - A Guide to Fees and Charges; and • Indicator Rates - For Deposit Products. It is important that you read and understand these terms and conditions. These are available from NAB at any time. If you have not already received copies of each of these documents please contact NAB. Any advice in this booklet has been prepared without taking into account your objectives, financial situation or needs. Before acting on this advice, NAB recommends that you consider whether it is appropriate for your circumstances."
Pages 2-3 of the Booklet contains a "Summary of Important Information". The summary is mostly concerned with the way in which a customer can contact NAB. However, it also says that "[i]f you believe that there has been an unauthorised transaction please notify NAB". Page 4 contains a "Product Comparison Table" showing the "key features and benefits of NAB Business Products".
Part A of the Booklet is headed "Terms and Conditions". Part A identifies the various kinds of business accounts to which the terms and conditions apply. It then provides information to customers through answers to "frequently asked questions" such as "How will the account work?" and "What interest will I receive/pay?".
Section 5 of Part A is headed "Payment Facilities". Clause 5.1 sets out "General provisions" that apply to cheque accounts. Among other requirements, customers are informed that if they have any cause to suspect that a cheque drawn on their account has been forged they must notify NAB immediately. Customers are also advised that they must have in place adequate systems and procedures to prevent unauthorised or forged cheques being presented to NAB.
Part A of the Booklet then deals with a range of other topics. These include dishonouring of cheques, the meaning of banking terms such as "not negotiable" and "account payee only", the clearance of cheques and the direct debits system.
Part A concludes with cll 5.18, 5.19 and 5.20, on page 20 of the Booklet. Clause 5.18 has already been set out, but it is convenient to do so again: "You must check your statements Without limiting any part of these terms and conditions for your account, you must promptly review your statement of account to check for and tell NAB of any transaction recorded on your statement that you suspect for any reason that you did not authorise or for which the information recorded is incorrect. If you do not, then subject to any applicable law, you do not have any right to make a claim against NAB in respect of such a matter (for example, a forged cheque)."
Clause 5.19 provides that the customer is to indemnify NAB against loss in certain circumstances. Clause 5.20 states that the matters dealt with in Part B are included in "these terms and conditions". Part B deals with such matters as the Code of Banking Practice, variation and notice provisions and electronic communications.

[8]

When was the Agreement Concluded?

In Baltic Shipping Co v Dillon ("Mikhail Lermentov"), [15] Gleeson CJ observed that the question of whether a limitation clause is included in a contract and the question of when and by what means the contract was made are closely related. His Honour pointed out that a resolution of the first question is ordinarily assisted by an analysis of the second. In the present case, the question of whether cl 5.18 was incorporated into the agreement between NAB and Ms Dionys requires consideration of when that agreement was concluded.
The starting point is the Authority Card signed on 14 March 2011 by Ms Dionys and Mr Melisi, presumably not at the same time. Ms Dionys' evidence, unchallenged on this point, was that she was asked questions by Mr Ahmad, who then produced the Authority Card on the basis of her answers. Ms Dionys read through the document prepared by Mr Ahmad and signed it at the place he indicated.
The Authority Card includes terms and conditions on which the Account is to operate. These include provisions in which NAB is entitled to rely in its dealings with its customers, for example, terms stating when NAB can elect not to follow instructions and the circumstances in which otherwise confidential information can be disclosed to third parties. On their face, the terms and conditions govern the relationship between banker and customer and are intended to have contractual force. That this is the intention of the parties is reinforced by the express statement that the customer can terminate the authority granted to NAB only by informing NAB in writing.
Although Ms Dionys signed the Authority Card as requested, she was not asked to sign the Booklet or any part of the NAB Conditions. Indeed, despite NAB's insistence that the NAB Conditions form part of the contractual arrangements with the customer, there is no provision for the customer to sign the Booklet or the NAB Conditions.
The Authority Card itself makes no express reference to the NAB Conditions. Mr Reynolds suggested that the section of the Authority Card dealing with "Account Authorities" can be construed as incorporating the NAB Conditions. But the relevant provision merely says that the named person is authorised to do "anything else the terms and conditions of the account or service, or this authority says they can do". This language cannot be read as incorporating into the agreement unspecified terms and conditions, including terms that have nothing to do with the authority of the named person.
Mr Ahmad did not suggest that it was part of his usual practice to inform customers that the NAB Conditions formed part of the agreement with the customer. He simply said that he told customers they could access the terms and conditions on NAB's website. Mr Ahmad's evidence is important for something else he did not say. His evidence was that his practice was to provide the Booklet to customers "when opening a business cheque account" and that, based on his usual practice, he believed that when the Account was opened he handed Ms Dionys the Booklet. Mr Ahmad's evidence does not address whether his practice was to hand the Booklet to the customer before the customer signed the Authority Card or after the document had been signed. Accordingly, his evidence was equivocal as to whether his practice was to hand the Booklet to the customer before or after the customer was asked to sign the Authority Card. If anything, Mr Ahmad's language tends to suggest that the Booklet was not usually given to the customer until after he or she signed the Authority Card. Mr Morrow's evidence is to the same effect.
Mr Ahmed cannot be expected to have any particular recollection of the circumstances in which the Account was opened. Nevertheless, NAB could have elicited further evidence from him to clarify his standard practice. As I have pointed out, NAB bears the onus of proving that cl 5.18 of the NAB Conditions was incorporated into the agreement between NAB and Ms Dionys. NAB's failure to elicit more specific evidence from Mr Ahmad allows an inference to be drawn with greater confidence that his practice was not necessarily to give the Booklet (and the other documents to which he referred) to a customer before the customer had signed the Authority Card. [16] In my opinion, NAB has not established on the balance of probabilities that Mr Ahmad gave Ms Dionys the Booklet containing the NAB Conditions before she signed the Authority Card.
On this basis, nothing occurred in the meeting between Mr Ahmad and Ms Dionys to indicate to a hypothetical reasonable observer that the agreement between NAB and Ms Dionys would not be finalised until she received the Booklet and had an opportunity to consider whether she would accept the NAB Conditions. NAB has not established that the Booklet was given to Ms Dionys, or even that it was referred to, before she signed the Authority Card. In my view, the agreement between NAB and Ms Dionys was concluded when she signed the Authority Card at Mr Ahmad's request and in his presence.
I infer from a bank document (Blue 129) recording the times at which particular bank officers dealt with an account, that Mr Melisi probably signed the Authority Card some time after Ms Dionys signed it. However, I do not consider that Mr Melisi's signature on the Authority Card was required in order to conclude the agreement between NAB and Ms Dionys. There is no evidence suggesting that Ms Dionys was told that the Account would be opened only after Mr Melisi (who did not give evidence) certified that she had provided the necessary identification and that the Authority Card had been completed correctly. The portion of the document signed by Mr Melisi states that it is for "NAB use only", suggesting that it was not to be seen by Ms Dionys and was not part of the bilateral dealings required to reach an agreement. No doubt if Mr Melisi discovered some flaw in the documentation, further contact would have been made with Ms Dionys. But if there was a deficiency in the documentation, NAB could have relied on the terms and conditions in the Authority Card to decline to act on Ms Dionys' instructions. An objective observer would have concluded that Mr Melisi's certification was required by NAB's internal procedures and was not a precondition to the finalisation of an agreement with the customer.

[9]

No Additional Terms

Once Ms Dionys signed the Authority Card and the agreement with NAB was finalised, it was not open to NAB unilaterally to introduce new terms and conditions into the agreement, whether by handing her the Booklet or otherwise. As was pointed out by Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay, [17] it is too late after a contract has been made for one party to add conditions not incorporated in the original contract. Whether the unilateral attempt to add conditions occurs some time after the agreement has been concluded or only a short time later cannot matter.
If I am incorrect and the agreement between NAB and Ms Dionys was not complete when she signed the Authority Card, it would be necessary to determine whether the steps taken by NAB were sufficient to incorporate cl 5.18 of the NAB Conditions into the agreement. Since Ms Dionys was never asked to sign the Booklet or to acknowledge its terms in writing, cl 5.18 could only form part of the agreement if Ms Dionys accepted or at least had the opportunity of accepting cl 5.18 of the NAB Conditions. Assuming that Ms Dionys was given the Booklet on 14 March 2011, NAB would have to show that it had done all that was reasonably necessary to bring any "unusual conditions" in the NAB Conditions to Ms Dionys' attention. Clause 5.18 is an unusual condition for this purpose because, as I have pointed out, it significantly limits NAB's liability under common law principles and correspondingly curtails Ms Dionys' rights. [18]
In my view, NAB did not take the steps reasonably necessary to bring cl 5.18 to Ms Dionys' attention so as to incorporate the provision into the agreement. On Mr Ahmad's evidence, he did no more than hand the Booklet to Ms Dionys and inform her that she could also access the terms and conditions on NAB's website. The Booklet comprises 71 pages and deals with many different topics. The terms imposing duties on customers or limiting NAB's liability are not highlighted. It would take a considerable effort for a lay person to read and comprehend the contents of the Booklet in order to ascertain his or her responsibilities towards NAB. This case is different, for example, from one where a straightforward exemption clause is prominently displayed on a notice or ticket. It is also not a case where NAB can rely on a course of dealing to establish that a limitation clause has been brought to the attention of a customer. [19]
In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd, [20] the Privy Council observed that: "If banks wish to impose upon their customers an express obligation to examine their monthly statements and to make those statements, in the absence of query, unchallengeable by the customer after expiry of a time limit, the burden of the objection and of the sanction imposed must be brought home to the customer." This observation was made in the course of construing an exemption clause and was not directed to whether an exemption clause or unusual condition formed part of a contract. Nonetheless, the observation has force in the present context. If a bank wishes a customer to be bound by unusual or onerous terms in a document, there is no obvious reason why it should not ensure that the document is signed. The customer's signature ordinarily gives contractual effect to the document that it otherwise may not have. [21] In the absence of such a signature, the bank runs the risk that the terms contained in the document will not form part of the contractual arrangements between it and the customer.
For these reasons, cl 5.18 of the NAB Conditions in my view was not incorporated into the agreement between NAB and Ms Dionys.

[10]

Ms Dionys' Compliance with cl 5.18

This conclusion makes it unnecessary to consider whether the primary Judge erred in finding, at least implicitly, that Ms Dionys complied with the requirement of cl 5.18 of the NAB conditions to tell NAB promptly of the unauthorised withdrawals from the Account. Had it been necessary to do so, I would have set aside the finding for three main reasons.
First, the primary Judge made no clear finding as to when Ms Dionys made what his Honour described as "an enquiry of a branch [but not] the requisite complaint". He found only that at a time after 19 April 2011 "but some month or months before 12 October 2011" Ms Dionys contacted the Maroubra branch of NAB about the withdrawal. It is difficult to see how such contact, for example as late as August or September 2011, and therefore some four or five months after the unauthorised transactions, could be considered "prompt" within the meaning of cl 5.18.
Secondly, the primary Judge did not identify with any precision what Ms Dionys communicated to the teller at the Maroubra branch of NAB. His Honour found that Ms Dionys made an inquiry, but not a formal complaint. He did not make a finding as to whether the inquiry amounted to informing NAB that unauthorised withdrawals had been made from the Account.
The absence of such a finding is significant since Ms Dionys' evidence on the point was vague and NAB retained no record of any communication between Ms Dionys and the Maroubra branch. In her first affidavit, she merely said that after she received the statement of account in April 2011, she contacted the Maroubra branch and was advised by the teller, whose name Ms Dionys could not recall, that funds had been transferred from the Account. Ms Dionys did not say in either of her affidavits that she had actually complained about unauthorised withdrawals. This is a striking omission from her evidence.
Thirdly, the primary Judge made no reference to unchallenged evidence given by Mr Benincasa that contradicted Ms Dionys' account of her communications with NAB. Ms Dionys claimed that she made several attempts to contact Mr Benincasa in May or June 2011, several months prior to Mr Benincasa making a record of what he said was his first contact with her. Ms Dionys said that when she finally succeeded in having a conversation with Mr Benincasa he informed her that funds had been withdrawn from the Account. She added that Mr Benincasa told her to "hold off" informing the police about the unauthorised withdrawals. Ms Dionys was strongly challenged in cross-examination about this evidence, which she had not included in her affidavit. At one point she agreed with the cross-examiner that her explanation for not including in her affidavits the account of her conversations with Mr Benincasa did "not make sense".
By contrast, Mr Benincasa was not challenged in his evidence that his first contact with Ms Dionys was in October 2011, following his review of Mr Brown's report. Nor did the cross-examiner put to Mr Benincasa that he had asked Ms Dionys to "hold off" reporting anything to the police. NAB's records indicate that Mr Benincasa, at least from October 2011 onwards, was insistent that NAB required Ms Dionys to report the matter to the police.
In my opinion, the primary Judge's conclusion that Ms Dionys did not breach cl 5.18 of the NAB Conditions is tainted by incomplete factual findings and his Honour's apparent failure to consider the unchallenged evidence of Mr Benincasa. Nevertheless, since I have held that cl 5.18 was not incorporated into the agreement between NAB and Ms Dionys, it is not necessary to take the question of whether Ms Dionys breached of cl 5.18 of the NAB Conditions any further.

[11]

Procedural Fairness

NAB submitted that it was procedurally unfair for Ms Dionys to be permitted to dispute that she signed the withdrawal slip for the Second Withdrawal. Mr Reynolds contended that Ms Dionys had never put her case on the basis that her signature had been forged and had denied that she signed the Second Withdrawal only when cross-examined.
Ms Dionys pleaded in the Statement of Claim that only she was authorised to operate the Account. She also pleaded that NAB, in breach of its agreement with her, refused to repay her the sum of $493,008.91 which had been deposited to the Account. NAB's Amended Defence pleaded that on 19 April 2011, Ms Dionys signed a withdrawal slip and removed the balance of the Account. Ms Dionys did not file a Reply, but there was an implied joinder of issue with the pleaded defence. [22]
It was not a necessary element in Ms Dionys' pleaded case that another person had forged her signature on 19 April 2011. She was only required to show that she had not signed a withdrawal slip or other instrument authorising funds to be withdrawn from the Account. In an affidavit sworn on 17 October 2013, before NAB filed its Amended Defence, [23] Ms Dionys expressly stated that she had never signed any withdrawal slips authorising withdrawals from the Account.
There was clearly an issue between the parties, identified well in advance of the trial, as to whether Ms Dionys had signed the withdrawal slip on 19 April 2011. Ms Dionys' counsel, in opening her case at the trial, expressly stated that there was a dispute as to whether Mr Dimaris signed the withdrawal slip in respect of the Second Withdrawal and that NAB bore the onus of proving that she had in fact signed. Ms Dionys gave oral evidence consistent with her affidavit evidence and was cross-examined on the point.
Mr Reynolds placed some emphasis upon the primary Judge's comments in the course of final oral submissions that he could not see how he could "deal with forgery" as an issue. Read in context, his Honour appears to have been saying simply that he was not required to make an affirmative finding that Ms Dionys' signature had been forged. In any event, a comment made in final submissions does not alter the fact that the parties were at issue as to whether Ms Dionys signed the Second Withdrawal slip.
There was no denial of procedural fairness in the primary Judge's finding that Ms Dionys did not sign the Second Withdrawal slip.

[12]

Mr Dimaris' Authority

NAB submitted to the primary Judge that the evidence justified an inference that although Mr Dimaris was not an authorised signatory on the Account, Ms Dionys had authorised him to transact the First and Second Withdrawals. NAB relied on cases standing for the proposition that a bank is entitled to act on cheques drawn or other instructions given by a person who has actual authority to conduct the transactions, notwithstanding that the bank's written mandate from the customer requires additional or different signatories. [24]
As has been seen, the primary Judge accepted Ms Dionys' evidence that she had not authorised Mr Dimaris to withdraw funds from the Account. Mr Reynolds submitted that the primary Judge erred in accepting Ms Dionys' evidence and that his Honour should have inferred that she authorised Mr Dimaris to withdraw funds from the Account. Mr Reynolds recognised that the primary Judge's finding was credit based and that NAB therefore had to show that the finding was contrary to incontrovertible evidence, glaringly improbable or contrary to compelling inferences. [25] However, he contended that the evidence relied on by NAB satisfied this demanding standard for appellate intervention.
The principal matters upon which Mr Reynolds relied are as follows: (i) At the outset of the Primary Judgment, the primary Judge recorded that Ms Dionys: "stated that, on the direction of Mr Dimaris, she went to open an account with [NAB's] Marrickville branch for the purpose of having an account which could be operated at either [the] direction or upon the advice of Mr Dimaris". According to Mr Reynolds, this evidence was inconsistent with his Honour's finding that there was nothing to contradict Ms Dionys' denial that she had authorised Mr Dimaris to operate the Account. (ii) Ms Dionys' email of 14 June 2011, [26] in which she sought to withdraw from her investment with Mr Dimaris' company, conveyed that there had been an antecedent agreement to transfer funds from the Account to the company. The email, coupled with Ms Dionys' oral evidence that she attempted to retrieve funds from the company, supported the inference that Mr Dimaris had authority to withdraw funds from the account. Moreover, Ms Dionys had acknowledged in her oral evidence that she was under the impression that there was an agreement involving Mr Dimaris and his company having $492,000.00. (iii) Ms Dionys acknowledged in cross-examination that she had a close relationship with Mr Dimaris. This acknowledgement supported the inference that she authorised Mr Dimaris to withdraw funds from the Account. (iv) Ms Dionys spoke with Mr Mitri, a solicitor acting on behalf of Mr Dimaris' company on litigation against a third party. In that conversation, which took place with Mr Dimaris' consent, Ms Dionys told Mr Mitri that she was an investor with the company and wanted to know what prospect there was of getting her money back.
Mr Reynolds did not dispute that NAB bore the onus of proving that Ms Dionys authorised Mr Dimaris to withdraw the funds from the Account. [27] NAB therefore has to establish not only that his Honour's credit based finding should be overturned, but that the evidence is sufficient to establish, on the balance of probabilities, that Ms Dionys authorised Mr Dimaris to withdraw funds from the Account.
There are aspects of Ms Dionys' evidence that excite suspicion. Ms Dionys' claim to have been shocked by the discovery that funds had been withdrawn from her account is difficult to reconcile with her apparent failure to bring the matter to the attention of anyone at NAB other than (perhaps) a teller at the Maroubra branch. Her claim that she signed documents in March 2011 presented to her by Mr Dimaris and an associate of his under some form of duress has bizarre elements, including her evidence that a gun somehow emerged from a package at the meeting. Certain aspects of Ms Dionys' evidence about the conversations she claims to have had with Mr Benincasa are not only inconsistent with his evidence but, so far as can be gleaned from a transcript, less than convincing.
It is also true that some of Mr Reynold's criticisms of his Honour's reasoning have force. For example, his Honour thought it significant that the First Withdrawal was effected before the solicitor's cheques paid by Ms Dionys into the Account had been cleared. Why that supported Ms Dionys' case is not made clear in the Primary Judgment. Nor was it correct for the primary Judge to say that there was no evidence that contradicted Ms Dionys' account of events, although his Honour may have meant only that there was no evidence directly contradicting her claim that she had not authorised Mr Dimaris to withdraw funds from the Account. NAB's submissions did not give any prominence to the delay between the hearing and the delivery of judgment. However, where there is significant delay, an appellate court looks with special care at credit based findings of fact. [28] A delay of twelve months, although not as extreme as in some reported cases, is nonetheless substantial.
Despite all these considerations, I do not think that the matters relied on by NAB justify this Court overturning the primary Judge's finding that NAB had not established that Ms Dionys authorised Mr Dimaris to withdraw funds from the Account.
As his Honour observed, the documentary evidence, subject to the dispute concerning the signature on the Second Withdrawal slip, was consistent with Ms Dionys' evidence. In addition, his Honour was entitled to take into account that NAB read an affidavit by Mr Dimaris, presumably the one person other than Ms Dionys who was able to give direct evidence that he had her authority to operate the Account. The affidavit provided no affirmative support for NAB's case that Ms Dionys authorised Mr Dimaris to withdraw funds from the Account. Nor did the affidavit contradict Ms Dionys' evidence in material respects. (As the primary Judge pointed out, NAB unsuccessfully sought leave at the trial to withdraw the affidavit. While there was considerable confusion both at the trial and in argument on the appeal as to the precise status of the affidavit, there is little doubt that it was regarded as having been read and that it formed part of the evidence before the primary Judge).
I do not think that the matters relied upon by NAB demonstrate that the primary Judge's finding on authority was contrary to incontrovertible evidence, glaringly improbable or contrary to compelling inferences. I reach this conclusion for the following reasons.
The passage in the Primary Judgment relied on by Mr Reynolds [29] refers to evidence given by Ms Dionys that she opened the Account so that it could be operated at Mr Dimaris' direction. If Ms Dionys had given that evidence, it would cast considerable doubt on her denial that she authorised Mr Dimaris to withdraw funds from the Account. However, when Mr Reynolds was asked during argument on the appeal to identify where Ms Dionys had given this evidence, he was unable to do so. It therefore appears that his Honour was mistaken and Ms Dionys did not say that she opened the Account so that it could be operated at Mr Dimaris' direction.
Ms Dionys' email of 14 June 2011 can be read as implying that Ms Dionys had invested funds with Mr Dimaris' company, MD Asset. Evidence given by Mr Dimaris' solicitor, Mr Mitri, suggests that Ms Dionys described herself as an investor with Mr Dimaris when she sought information from Mr Mitri (with Mr Dimaris' permission) as to the likelihood that she would be able to recoup her money from MD Asset. However, Ms Dionys denied that she had knowingly invested money through Mr Dimaris or that she had entered a loan agreement with him or his company. The primary Judge said that in the absence of Mr Dimaris' evidence being tested, and the production of an original document, he was unable to conclude that Ms Dionys had knowingly signed a loan agreement.
It is clear that Ms Dionys approached Mr Dimaris and Mr Mitri in an attempt to retrieve funds that, one way or another, had been withdrawn from the Account. These actions do not necessarily prove that she knowingly invested funds with Mr Dimaris or his company. There may have been very good reasons for Ms Dionys, at that stage, not to dispute what (on her case) she had been told by Mr Dimaris. In any event, the fact (if it be a fact) that an investor has agreed to place funds with another person does not mean that the investor has authorised the other person to withdraw funds from the investor's bank account. In my opinion, Ms Dionys' email of 14 June 2011 and her conversation with Mr Mitri are equivocal as to the question of whether Ms Dionys authorised Mr Dimaris to withdraw funds for the Account.
It is true that Ms Dionys said in her cross-examination that she was under the impression that there was an agreement in place with Mr Dimaris. However, she explained that she formed that impression because Mr Dimaris had told her that such an agreement existed. Ms Dionys' evidence was that she "truly believe[d] that there was no agreement".
The closeness of the relationship between Ms Dionys and Mr Dimaris was a matter explored in cross-examination and was a factor that the primary Judge had to take into account in assessing Ms Dionys' credibility. But the nature of the relationship between Ms Dionys and Mr Dimaris does not constitute clear or convincing evidence that Ms Dionys authorised Mr Dimaris to withdraw funds from the Account. The closeness of the relationship, on one view of the facts, may even have made it easier for Mr Dimaris to obtain access to the Account without Ms Dionys' authority.
In my opinion, despite the suspicions to which I have referred, NAB has not identified evidence that justifies overturning the primary Judge's credibility based finding that Ms Dionys did not authorise Mr Dimaris to withdraw funds from the Account.

[16]

Principles Governing Ratification

The operation of the doctrine of ratification was explained by Isaacs J in Davison v Vickery's Motors Ltd (In Liq) [31] as follows: "(1) The general rule is that no person can become a party to a bilateral contract unless he enters into it personally or by an authorized agent. (2) An exception is recognized where a person ratifies an agreement made by another as for him but without his antecedent authority. (3) On ratification, and not before, the agreement is as a general rule deemed by a fiction to have been made by his antecedent authority to the person actually making it."
There are three prerequisites for a valid ratification: [32] "■ the agent whose act is sought to be ratified must have purported to act for the principal; ■ at the time the agent acted, he or she must have had a competent principal (that is, the principal must have been in existence and capable of being ascertained); and ■ at the time of the ratification, the principal must be legally capable of doing the act which has been ratified."
Whether the conduct of the principal amounts to ratification is a question of fact, but the party alleging that unauthorised acts have been ratified bears the onus of proving that ratification has taken place. [33] The general principle is that the language or conduct of the principal must be unequivocal. [34] However: "The positive acts of the alleged principal may, aside from any express words, constitute sufficient evidence of ratification. This may be so where the fair inference to be drawn from a person's conduct, on an objective basis, is that the person consents to a transaction to which he or she might properly have objected. Put another way, ratification 'is implied from or involved in acts when you cannot logically analyse the act without imputing such approval to the party whether his mind in fact approved or disapproved or wholly disregarded the question'." [35]
Within this framework, it may seem surprising that a principal's failure to act, or his or her mere silence, may constitute ratification of the unauthorised acts of the putative agent. Nonetheless, the authorities recognise that, in certain circumstances, ratification can be inferred from silence or acquiescence. Thus, in City Bank of Sydney v McLaughlin, [36] a case relied on by NAB, Griffith CJ and Barton J explained that: "In general a man is not bound actively to repudiate or disaffirm an act done in his name but without his authority. But this is not the universal rule. The circumstances may be such that a man is bound by all rules of honesty not to be quiescent, but actively to dissent, when he knows that others have for his benefit put themselves in a position of disadvantage, from which, if he speaks or acts at once, they can extricate themselves, but from which, after a lapse of time, they can no longer escape. Under such circumstances mere inaction is convincing evidence of ratification or adoption."
The Victorian Court of Appeal recently summarised the circumstances in which a court can infer ratification from silence or acquiescence: [37] "… for a principal to ratify the unauthorised transactions of an agent, the evidence must establish that the principal had full knowledge of all the material circumstances in which the unauthorised transactions were made and thereby consciously sanctioned the agent's unauthorised act. Silence or acquiescence will not constitute ratification absent proof of a knowing acceptance sufficient to be treated in equity as an assent to what would otherwise be an infringement of rights. The evidence must establish knowledge by the principal which enables his or her subsequent inaction to be seen as an adoptive act or consciously sanctioned." [citations omitted.]

[17]

Determination of the Ratification Issue

Mr Reynolds' criticisms of the primary Judge's reasoning on the issue of ratification have considerable force. His Honour did not state or apply the principles governing ratification of unauthorised acts. Nor did his Honour make findings on disputed factual matters relevant to the question of ratification. For example, although his Honour found that Ms Dionys did not sign the withdrawal slips completed at the time of the First and Second Withdrawals, he made no finding as to whether Mr Dimaris was responsible for withdrawing the funds and, if so, whether he did so forging Ms Dionys' signature on any of the documents presented to NAB. [38] It is clear that Ms Dionys knew by April 2011 following her receipt of the bank statement dated 19 April 2011, that moneys had been withdrawn from the Account. However, no finding was made as to what she knew about Mr Dimaris' involvement in the transactions and the circumstances in which the funds had been withdrawn. The primary Judge's finding that Ms Dionys informally notified NAB of the unauthorised withdrawals, apart from the difficulties to which I have referred, does not identify the day or even the month on which the notification occurred.
As Mr Reynolds in substance recognised, it is not feasible for this Court to make findings on factual issues left unresolved in the Primary Judgment where the issues require an assessment of credit. The question is therefore whether, in view of the matters left unresolved in the Primary Judgment, the Court should direct that a new trial should take place on the issue of ratification.
The Court has power to order a new trial on any question without interfering with the decision on any other question. [39] If it makes such an order, the Court may make such orders as the nature of the case requires for the disposal of the remainder of the appeal. [40] However, the Court must not order a new trial on any ground unless it appears that some substantial wrong or miscarriage has been thereby occasioned. [41]
Despite the Primary Judgment not dealing fully with ratification, I am not persuaded that this Court should order a new trial. None of the matters identified by Mr Reynolds establishes, either individually or collectively, that Ms Dionys unequivocally ratified the First and Second Withdrawals.
The fact that Ms Dionys knew of the First and Second Withdrawals by April 2011, does not demonstrate the she was aware of all of the material circumstances surrounding the transactions. Her cross-examination was not directed to establishing that she learned by October 2011 precisely what had occurred when the funds were withdrawn from the Account. (This perhaps helps explain why the primary Judge made no finding on the factual question.) Ms Dionys' attempts to retrieve funds from Mr Dimaris or MD Asset are equivocal on the issue of ratification. They are consistent with her seeking to hold Mr Dimaris responsible for the unauthorised withdrawals rather than demonstrating that she endorsed the transactions. After all, if Mr Dimaris had withdrawn funds without authority, he was liable to repay all moneys to Ms Dionys. The lack of a complaint to the police against someone known to Ms Dionys since childhood is explicable on a basis other than her approving or adopting the unauthorised withdrawals.
The only detriment NAB identified as flowing from Ms Dionys' delay in notifying it of the unauthorised transactions was its loss of the ability to view CCTV footage of the actual transactions which resulted in the First and Second Withdrawals. But there is no evidence that Ms Dionys was aware that a delay in notifying NAB of the unauthorised withdrawals would have this result. She could hardly be expected to know that NAB had lost or misplaced its own records relating to the transactions. In any event, NAB's records (once located) pointed to Mr Dimaris (and not Ms Dionys) being present at the time of the First and Second Withdrawals took place. What CCTV footage would add to the documentary evidence is unclear.
Although the primary Judge did not explain why he considered the cases relied on by NAB to be distinguishable, there are obvious differences between them and the facts of the present case. In City Bank of Sydney v McLaughlin, [42] the principal stood by and knowingly enjoyed the benefits of the unauthorised transaction before belatedly protesting. In West v Commercial Bank of Australia, [43] the principal took no action despite knowing that his son was signing cheques on his account without authority. Indeed, the principal even endorsed negotiable instruments signed irregularly by his son. The present case does not have these features.
For these reasons, while NAB has made valid criticisms of the reasoning of the approach of the primary Judge to the issue of ratification, I do not think that it has shown that a new trial is needed to avoid a substantial wrong or miscarriage.

[18]

Jones v Dunkel

NAB concluded that the primary Judge erred in finding that he was "bound" to accept Ms Dionys' evidence that she had not authorised the First and Second Withdrawals. Mr Reynolds submitted that his Honour placed too much weight on NAB's failure to call Mr Dimaris and Mr Nguyen to give evidence, thereby misapprehending the principles stated in Jones v Dunkel. [44]
The basic principle for which Jones v Dunkel stands is that the unexplained failure by a party to call witnesses or to tender documents may, not must, lead to an inference that the uncalled evidence would not have assisted that party's case. [45]
NAB's submission, in my view, attributes too much weight to his Honour's reference to Jones v Dunkel. In concluding that he was "bound" to accept Ms Dionys' evidence, his Honour was not merely referring to NAB's failure to call Mr Dimaris to give oral evidence or Mr Nguyen to give evidence at all. Although perhaps not as precisely expressed, as it might have been, his Honour was saying that the evidence as a whole was consistent with Ms Dionys' denial that she authorised Mr Dimaris to withdraw funds from the Account and that witnesses who might have contradicted her denial were not called. In that state of the evidence, notwithstanding the reservations he expressed about aspects of Ms Dionys' evidence, his Honour felt that he had to accept her denial. Contrary to NAB's submissions, his Honour's finding was not simply based on NAB's failure to call Mr Dimaris and Mr Nguyen.
The primary Judge did not say that he inferred from NAB's failure to call Mr Dimaris that his evidence would not have assisted NAB. The point his Honour was making seems to be that Mr Dimaris' absence from the witness box, despite voluntarily swearing an affidavit and apparently complying with NAB's requests, meant that the Court was left with Ms Dionys' evidence and documentary evidence, both of which were consistent with her case.
However, to the extent that the primary Judge inferred (if he did) that Mr Dimaris' evidence would not have assisted NAB, I think he was entitled to do so. It is said that Mr Dimaris was not in NAB's "camp". But, as his Honour said, Mr Dimaris provided an affidavit at NAB's request and the failure to call him was unexplained. It can fairly be said that, in these circumstances it would be expected that Mr Dimaris would be called by NAB rather than Ms Dionys. [46]
The primary Judge considered that Mr Nguyen might have been expected to clarify the entries in NAB's records relating to the First and Second Withdrawals and the notation recording Mr Dimaris as a second authorised signatory to the account. [47] His Honour did not suggest that Mr Nguyen's absence from the witness box justified an inference that Ms Dionys' account was more likely to be truthful. Again, the point was that NAB's records did not contradict Ms Dionys' denial that she authorised Mr Dimaris to withdraw funds. Her evidence was consistent with the documentation. Clearly enough, Mr Nguyen could not have shed light on whether Ms Dionys, independently of her dealings with NAB, had authorised Mr Dimaris to operate the Account.
For these reasons, I do not accept that the primary Judge's findings relied on a misapprehension of the principles stated in Jones v Dunkel.

[21]

Authority to Mr Dimaris

The NAB contended that Ms Dionys gave actual authority to Mr Dimaris to withdraw the moneys from the Account. If this had been established it would not matter that such authority had not been conveyed by Ms Dionys to the NAB. The NAB ultimately relied upon seven matters from which it said a conclusion of actual authority given to Mr Dimaris should be drawn, notwithstanding Ms Dionys' denial of giving such authority and notwithstanding the fact that the NAB sought to withdraw Mr Dimaris' affidavit and did not make him available for cross-examination. Those seven matters were the primary judge's summary of Ms Dionys' evidence referred to by Sackville AJA at [106], the asserted closeness of the relationship between Ms Dionys and Mr Dimaris; the terms of her email to Mr Dimaris of 14 June 2011; Ms Dionys' evidence in cross-examination from which it was submitted that she did not dispute that she wanted to "get out" of her agreement with Mr Dimaris and get her money back; the evidence of Mr Mitry who deposed to having had a meeting with Ms Dionys in which she said words to the effect that she was an investor with Mr Dimaris' company and it did not look as if she would get her money back from the project; what was said to be her signature on the second withdrawal slip; and what was said to be her delay in making a complaint to the bank after she learned in April 2011, after receiving her bank statement, that the moneys had all been withdrawn.
I agree with Sackville AJA that the evidence does not justify overturning the primary judge's acceptance of Ms Dionys' denial of conferring such authority. Ms Dionys did not give evidence that she opened the account for the purpose of its being operated at the direction or on the advice of Mr Dimaris. As Sackville AJA has said (at [117]), the asserted closeness of the relationship between Ms Dionys and Mr Dimaris was not clear or convincing evidence of his having authority to withdraw funds from the Account, but may have been a factor that made it easier for him to obtain access to the Account without her authority. The Account was opened at the NAB's Marrickville branch where Mr Dimaris did his banking, whereas Ms Dionys lived at Maroubra (a considerable distance from Marrickville). It appears that the staff at the Marrickville branch permitted withdrawals from the Account on the signature only of Mr Dimaris, notwithstanding that there was no signed authority from Ms Dionys authorising him to be a signatory to the Account. This is consistent with Mr Dimaris' having been instrumental in having the Account opened at the Marrickville branch, but it is not evidence of Ms Dionys' giving him authority to operate the Account.
For the reasons given by Sackville AJA neither the email of 14 June 2011, nor Mr Mitry's evidence clearly or incontrovertibly demonstrates that at the time of the transactions Ms Dionys had authorised the withdrawals, as distinct from her having later explored the possibility of recovering the funds that Mr Dimaris caused to be invested.
Ms Dionys was cross-examined on her email of 14 June 2011. The effect of her evidence in cross-examination was that Mr Dimaris had heatedly asserted that there was an agreement between them and she asserted she wanted her money back. It was only in response to his asserting that there was an agreement between them that she said that she wanted to get out of the agreement. There was no evidence contradicting that explanation.
If Ms Dionys had signed the second withdrawal slip there would be a powerful inference that she had also authorised the first withdrawal. The second withdrawal was for the balance of, and closed, the Account. The moneys were withdrawn in cash. The bank's records recorded Mr Nguyen as having identified by sight Mr Dimaris as a person making the withdrawal. What appears to be Mr Dimaris' signature also appears on the withdrawal slip. If Ms Dionys had signed the second withdrawal slip so that Mr Dimaris could receive the balance of the Account, it might well be inferred that she had also authorised the earlier withdrawal.
However, Ms Dionys denied having signed the second withdrawal slip. In cross-examination she accepted that the signature on the withdrawal slip was similar to hers, but she denied that it was the same. She said that she signed "upways" and suggested that the signature on the withdrawal slip was signed "downways". A comparison of her signatures on her affidavit and the signature on the withdrawal slip shows that this is a plausible contention. The NAB had pleaded that Ms Dionys signed the withdrawal slip. Issue was joined on that contention. As Sackville AJA has said, the onus was on the bank to establish that she did sign it. In contrast to a case in which a plaintiff asserts as part of her case that a document that purports to bear her signature is not hers, [48] the NAB had the onus of establishing what it pleaded, namely, that Ms Dionys had signed the withdrawal slip. In any event, once Ms Dionys had given evidence that she did not sign the withdrawal slip, an evidentiary onus passed to the NAB to establish that the signature was hers. The issue of forgery of the second withdrawal slip was raised in the course of the opening submissions of Ms Dionys' counsel. The NAB took the view that the onus was on Ms Dionys to plead and prove that the purported signature on the withdrawal slip was a forgery. But that was not so, and in any event, the onus was discharged by Ms Dionys' evidence.
The significance of the alleged delay by Ms Dionys in making a complaint after she saw the bank statement in April 2011 that showed that the moneys had been withdrawn and the Account had been closed, was threefold. First, it might be inferred from the delay that the withdrawals by Mr Dimaris were in fact authorised when they were made because if they were not, there would have been an immediate complaint. Secondly, the alleged delay in making a complaint was said to amount to adoption or ratification of the withdrawal, even if Mr Dimaris were not authorised to make the withdrawal at the time it was made. Thirdly, the delay is relevant to the bank's reliance upon clause 5.18 of the NAB Conditions that it says were terms of the contract. The present question is whether the primary judge should have concluded that Ms Dionys authorised Mr Dimaris to withdraw the funds from the Account because of her alleged delay in making a complaint. The NAB's case was that no complaint was made until 12 October 2011.
In her first affidavit Ms Dionys deposed that in or about April 2011, after she received the bank statement showing that the funds had been withdrawn and the Account had been closed, she contacted the bank but was advised by a teller, whose name she did not recall, if she ever knew it, that her funds had been transferred out of her account. She said she made several inquiries and spoke to several bank officers and was advised by "Adam" that "a person known as Matthew Dimaris has transferred your cash to his account". In cross-examination she said that she spoke with "Adam" from the bank in about April to June and then again in August. She said that in the second attempt Adam told her that "Sydney branch told me to hold off".
It was common ground that Ms Dionys did speak with Mr Adam Benincasa of the bank. But he said that he was first notified about Ms Dionys' claim on about 21 October 2011.
The primary judge accepted Ms Dionys' evidence that she had raised the matter of the unauthorised withdrawals with the NAB "some month or months" before making an official complaint in October 2011. However, the primary judge did not address the conflict between the evidence of Mr Benincasa and Ms Dionys. His Honour did not address Ms Dionys' oral evidence as to her pre-October 2011 conversations with Mr Benincasa, which he denied, and which, if not accepted, could have affected her credit generally. The NAB also pointed to an inconsistency in the primary judge's finding that he should accept the plaintiff's version that she did, at a time after 19 April 2011, but some months or months before 12 October 2011, at least informally contact the bank, and his finding that this was done after Ms Dionys had sought to find out what had happened with the Emerald development. That event took place about a year later.
These matters would only warrant an order for a new trial if it appeared that some substantial wrong or miscarriage of justice has occurred. [49] In my view, these matters do not suggest that there has been any substantial wrong or miscarriage of justice in relation to the primary judge's finding that the NAB has not established that Ms Dionys gave Mr Dimaris authority to operate on her account. The principal matter upon which the primary judge relied for that conclusion was the NAB's withdrawal of its reliance on the evidence of Mr Dimaris and of a Ms Di Paola. I agree with what Sackville AJA has said in relation to the asserted error of the primary judge in application of the principles in Jones v Dunkel. [50]
Mr Dimaris had made an affidavit in which he purported to summarise the effect of a document that he called the "Loan". His evidence purporting to describe the arrangement called the Loan was rejected by the primary judge. The rejection of that evidence was not a ground of appeal. Mr Dimaris deposed that in about March 2011 Ms Dionys executed the "Loan". The primary judge allowed that evidence on the basis that the reference to the Loan was to be read as a reference to the execution of a document. Mr Dimaris annexed a copy of a document said to be the Loan, but this was rejected. The primary judge required the original to be produced. Mr Dimaris also gave evidence in his affidavit of a conversation with Ms Dionys in early 2011 in which she said that she wanted to invest the proceeds of her divorce settlement into Mr Dimaris' development in Queensland, and to a later conversation in April 2011 in which, according to Mr Dimaris, Ms Dionys asked for the return of her money because she had been advised that she would be better off investing her money elsewhere rather than in his Queensland development.
On the commencement of the second day of the hearing counsel for the NAB stated that the bank would not be relying upon the Loan agreement (or what had been described as a consultancy agreement). Counsel said that the original of the document that the judge had required be produced had been found and could be produced, but the bank did not rely upon it. Later, counsel sought to withdraw Mr Dimaris' affidavit and the affidavit of Ms Di Paola that went to the same issue, and stated that the NAB would not be relying on those affidavits. Mr Dimaris was not made available for cross-examination.
Thus the case the NAB initially propounded was that Ms Dionys had given Mr Dimaris authority to operate on her account based on a document she was said to have signed and conversations she was said to have had with Mr Dimaris. But the NAB then sought to withdraw that evidence and did not make Mr Dimaris available for cross-examination. It could not rely upon any of that evidence. But the primary judge was entitled to conclude that the NAB had not established that Ms Dionys had given authority to Mr Dimaris to operate on her account when it had abandoned the primary evidence on which it initially relied to establish that authority and did not call Mr Dimaris. The NAB's criticisms of the way the primary judge dealt with evidence relevant to the inferences that might be drawn from the asserted delay in Ms Dionys' making a complaint to the NAB do not indicate there has been any substantial wrong or miscarriage of justice.

[22]

Ratification

The second ground of appeal was that the primary judge erred in not finding that Ms Dionys had ratified the withdrawals from the Account. This ground proceeds on the basis that the NAB had not established actual authority given either to the bank or to Mr Dimaris. There was no express ratification. The NAB submitted that ratification should be inferred from Ms Dionys' asserted delay in complaining about the unauthorised transactions until October 2011. It is not in dispute that ratification of an unauthorised act of an agent must be unequivocal. Nor is it in dispute that ratification can be inferred from inaction or silence. In Dal Pont, Law of Agency, 3rd ed, Professor Dal Pont says (at [5.31]): "Ratification by acquiescence or delay 5.31 Proof of the requisite unequivocality is more difficult again where that alleged to constitute ratification is the principal's silence or inaction. Yet ratification of an agent's unauthorised act can be implied from silence or acquiescence, provided that it cannot be explained sensibly on grounds other than an intention to adopt the agent's act [Yona International Ltd v La Reunion Francaise SA d'Assurances [1996] 2 Lloyd's Rep 84 at 106 per Moore-Bick J. Acquiescence may alternatively constitute evidence of ostensible authority …]. In other words, for evidence of acquiescence to amount to ratification, it must be equivalent to a clear adoptive act [Tobin v Melrose [1951] SASR 139 at 147 per Ligertwood J. See also Bank Melli Iran v Barclays Bank [1951] 2 TLR 1057 at 1063 per McNair J ('it is plain that mere inaction or silence may be evidence from which a jury might infer an intention to ratify'); Commonwealth Bank of Australia v Perrin (2011) Q ConvR ¶54-765; [2011] QSC 274; BC201107193 at [146] per McMurdo J (citing the second edition of this text with approval)]. The knowledge of the principal is critical here, [Taylor v Smith (1926) 38 CLR 48 at 54; BC2690110 per Knox CJ; Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56; BC200400430 at [62] per Young CJ in Eq; Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; BC201208017 at [74] per the court. …] for the principal must be proven to have 'consciously sanctioned' [Taylor v Smith (1926) 38 CLR 48 at 59; BC2690110 per Higgins J] the agent's act. Circumstances may dictate that the principal take positive steps to distance himself or herself from the agent's unauthorised act in order to avoid the inference that he or she has adopted the agent's act."
On the primary judge's findings the asserted delay, relevant to the issue of ratification, is not delay from April to October, but delay from April (after receipt of the bank statement) to a month or months before October 2011. Nonetheless, even such a shorter period of delay might be a basis for finding that Ms Dionys had consciously sanctioned Mr Dimaris' acts of withdrawing the funds. In any event, even if the delay were to 12 October 2011, as Sackville AJA has said (at [133]), Ms Dionys' conduct is consistent with her attempting to seek to hold Mr Dimaris responsible for the unauthorised withdrawals, rather than its demonstrating that she sanctioned them.

[23]

Clause 5.18

The NAB's reliance on clause 5.18 of the NAB Conditions document was the first and principal ground of appeal, although it only arises once it is determined that Ms Dionys did not authorise Mr Dimaris to withdraw the funds and did not ratify the withdrawals. For the reasons given by Sackville AJA the onus was on the NAB to show that clause 5.18 was incorporated as a term of its contract with Ms Dionys. [51]
The term was not incorporated in the only document signed by Ms Dionys. The NAB relied upon the evidence summarised by Sackville AJA to seek to establish that having regard to its usual practice, on the balance of probabilities, she was provided with a copy of the NAB Conditions and as a result the terms and conditions contained in it became terms of the contract between the bank and Ms Dionys.
In my view, a contract for the provision of banking services in relation to the account opened by Ms Dionys with the Marrickville branch of the NAB was entered into when Ms Dionys, having signed the Authority Card, handed it back to Mr Ahmad and he accepted it. As Sackville AJA has explained, the NAB's evidence as to its usual practice did not establish that the booklet headed "Terms and Conditions" would, as a matter of usual practice, have been provided to the customer before this was done.
Ms Dionys denied having received the booklet containing the NAB Conditions. If her denial were accepted, the NAB's reliance on clause 5.18 of the NAB Conditions would fail. The primary judge did not make a finding as to whether he accepted or rejected Ms Dionys' denial. Accordingly, there would have to be a new trial on this issue unless, on the evidence adduced by the NAB, it should not be found that clause 5.18 had been incorporated as a term of the contract, or it should not be found that the term had been breached. The primary judge proceeded on the basis that if clause 5.18 had been incorporated as a contractual term, it had been complied with. For the reasons given by Sackville AJA at [91]-[97], that finding would have to be set aside and a new trial ordered, if clause 5.18 were a contractual term.
But the NAB's evidence does not establish that clause 5.18 was incorporated as a term of the contract when the contract was entered into. One reason for this is that the bank's evidence did not establish that the booklet containing the NAB Conditions was provided before the contract was made.
The second reason is that even if the NAB Conditions had been given to Ms Dionys before the contract was made, there was no evidence that the NAB took any step to bring to her attention the effect of clause 5.18 that sought to impose upon her the obligation promptly to review her bank statement and to notify the bank of any suspected unauthorised or incorrect transaction, failing which the bank would not be liable. The NAB argued that it would be sufficient for clause 5.18 to be incorporated as a contractual term that Ms Dionys was provided with the booklet containing the NAB Conditions that plainly stated it contained contractual terms. I do not agree.
In the seminal case of Parker v South Eastern Railway Company [52] the customer received a ticket on the deposit of articles in a cloakroom on the back of which there was a notice stating that the company would not be responsible for any package exceeding the value of £10. A placard containing the same condition was hung up in the cloakroom. This was an exclusionary provision, albeit a reasonable one. Mellish LJ said that: "… if in the course of making a contract one party delivers to another a paper containing writing, and the party receiving the paper knows that the paper contains conditions which the party delivering it intends to constitute the contract, I have no doubt that the party receiving the party does, by receiving and keeping it, assent to the conditions contained in it, although he does not read them and does not know what they are." [53]
His Lordship said that the proper direction to give a jury for it to determine whether the condition was a term of the contract was: "… that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions." [54]
Baggallay LJ also addressed the question in terms of whether the customer knew or had good reason to believe that the ticket contained contractual conditions. He agreed with the direction proposed by Mellish LJ. [55]
Both Mellish and Baggallay LJJ considered there should be a new trial. Bramwell LJ dissented, but only on the ground that he thought the position was so clear that the condition had been incorporated as a contractual term, by reasonable notice of it having been given, that the defendant was entitled to a verdict. In argument, counsel for one of the plaintiffs had supposed the case in which the ticket contained an unreasonable term. Only Bramwell LJ specifically addressed this hypothesis. He said: "It is asked: What if there was some unreasonable condition, as for instance to forfeit 1000l. if the goods were not removed in forty-eight hours? Would the depositor be bound? I might content myself by asking: Would he be, if he were told 'our conditions are on this ticket,' and he did not read them. In my judgment, he would not be bound in either case. I think there is an implied understanding that there is no condition unreasonable to the knowledge of the party tendering the document and not insisting on its being read - no condition not relevant to the matter in hand." [56]
In Hood v Anchor Line (Henderson Brothers) Ltd [57] the House of Lords held that a customer was bound by the conditions in a ticket limiting the steamship company's liability for injury to £10. It was held that reasonable steps were taken to bring the condition to the knowledge of the plaintiff by a printed notice on the face of the ticket stating it was issued subject to conditions set out and a printed request to the passenger to read the conditions carefully. Viscount Haldane [58] framed the question as being whether the company had done all that was reasonably necessary to give the customer notice of the particular condition. Lord Dunedin also concluded that the defendant had done what was reasonably sufficient to bring to the customer's notice the existence of the particular condition. [59] On the other hand, Lord Finlay LC and Lord Parmoor framed the question in terms of whether the defendant company had taken steps that were reasonably sufficient to give the customer notice that the carriage was subject to the conditions set out.
In Causer v Browne [60] Herring CJ said: "There is no difficulty in the case where the offeree is shown to know in fact the special conditions on which the offeror relies. The difficulty arises when the offeror seeks to rely upon an estoppel and to maintain that, though the offeree did not know such conditions in fact, he is nevertheless bound by them. Thus it may be that, though he did not know what the conditions were, he did know that the offer was subject to conditions and did accept it without making any further inquiry. This is a common case in which the offeror will be held bound, but he may also be held bound in certain cases where the offeror is able to show that he has done all that is reasonably necessary in the circumstances to bring the conditions he relies on to the notice of the offeree. In this last-mentioned class of case a great deal depends upon the nature of the transaction and whether in the circumstances in which the document is delivered to the offeree a reasonable person would suppose that the terms and conditions on which the offeror is prepared to contract would be found printed or recorded thereon." [61]
It appears that his Honour considered that whilst the offeror must do that which is reasonably necessary to bring the particular condition on which he relies to the offeree's attention, it would be enough for the offeror to bring to the offeree's attention that he intends to contract on conditions found in the document. [62]
In McCutcheon v David MacBrayne Ltd [63] the plaintiff's agent was aware that the carrier was accustomed to contract on its own special conditions, but was unaware of the particular exclusion clause in issue. Lord Reid (at 432-433) said that as the plaintiff did not know that the carrier always sought to insist on excluding liability for their own negligence and did not know of any particular special term that would be included in the conditions there was nothing to prevent him from taking advantage of the contract his agent made, citing Gloag, Law of Contract that "[t]he judicial task is not to discover the actual intentions of each party: it is to decide what each was reasonably entitled to conclude from the attitude of the other".
In Thornton v Shoe Lane Parking Ltd [64] Lord Denning MR (at 170) and Megaw LJ (at 172) identified the question as being whether the company did what was reasonably sufficient to give the customer notice of the particular exempting conditions, rather than of the conditions in general. In Oceanic Sun Line Special Shipping Company Inc v Fay [65] Brennan J said (at 228-229): "But where an exemption clause is contained in a ticket or other document intended by the carrier to contain the terms of carriage, yet the other party is not in fact aware when the contract is made that an exemption clause is intended to be a term of the contract, the carrier cannot rely on that clause unless, at the time of the contract, the carrier had done all that was reasonably necessary to bring the exemption clause to the passenger's notice." (Citation of authority omitted.)
This was also the approach of Gleeson CJ and Kirby P in Baltic Shipping Co v Dillon. [66]
There are other cases in which a party has been found to be bound by an exclusion clause in an unsigned document that was not specifically brought to the party's attention. An example is where the parties were in an equal bargaining position and the term was usual in the industry in which both parties operated. [67] In Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [68] conditions contained in a sold note delivered after the making of an oral contract, that included an exclusion clause, were found to be incorporated in the contracts of sale of goods because the long practice of the parties was that on each occasion on which a transaction was entered into the sold note containing the terms was sent after the oral contract was made. As a result of a course of dealings between the parties, the parties were taken to have contracted on those terms, notwithstanding that there was no finding that the exclusion clause was specifically brought to the attention of the other party. [69]
Where a supplier's offer was expressly stated to have been made on the basis of its standard terms and conditions as provided in a previous quotation, those terms, including an exclusion clause, were incorporated as contractual terms when the offer was accepted. [70] Buchanan JA said (at 568) that: "The basic inquiry remains whether it was reasonable to assume that a contracting party has assented to the terms put forward by the other party."
The present issue and many of the above cases (and some others) were considered by Peter Lyons J in Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd. [71] His Honour, in my view correctly, said that whether, in the absence of signature, an exemption clause in a document proffered by an offeror that clearly contains proposed contractual terms will be taken to have been accepted by the offeree, although the offeree's attention has not been specifically drawn to the particular clause, depends upon what each party by words and conduct, would have led a reasonable person in the position of the other party to believe [72] . His Honour concluded as follows: "[70] My examination of these authorities leads me to adopt the following propositions for determining whether a party (the acceptor) is bound by a term set out or incorporated in an unsigned document which the other party (the offeror) has provided to the acceptor in circumstances which show the offeror intends the document to identify terms of the contract. It is not always the case that the acceptor is not bound by an exemption clause, unless the offeror directs attention to the clause. The fundamental question is whether the offeror is reasonably entitled to conclude that the acceptor has accepted the terms in the document, including the exemption clause. That conclusion should be reached where the second party has had a reasonable opportunity to consider the terms, including the exemption clause, and has behaved in a way which manifests acceptance of the document as recording contractual terms. In other cases, where the clause is one reasonably to be expected in contracts of the kind in question, acceptance of the document makes the clause binding, even if the acceptor does not know its terms, or even that it is contained in the document. If the clause is not one reasonably to be expected, then something more is required by way of provision of information about the clause to the acceptor before the contract is formed. What information will be required will depend on the circumstances, but particularly on the terms of the clause."
I agree. Applying that analysis to the facts of the present case, if the NAB had provided the NAB Conditions to Ms Dionys before she signed and returned the authority card that opened the account, it would not follow that she thereby indicated her acceptance of the limitation of the NAB's liability in clause 5.18. Hence, I agree with Sackville AJA that because the NAB did not take the steps reasonably necessary to bring clause 5.18 to Ms Dionys' attention its terms would not have been incorporated as a contractual term, even if the NAB Conditions had been provided to her before the contract was made.
The NAB submitted that if the contract had been formed before the provision of the booklet containing the NAB Conditions, then when the booklet was provided to Ms Dionys after the formation of the contract, but before she left the bank (assuming the usual practice was followed), then Mr Ahmad was proposing on behalf of the NAB a variation of the contract for the continued provision of banking services. The NAB submitted that it was under no obligation under the original contract to continue to provide services to Ms Dionys and accordingly, it was entitled to communicate to her the terms on which it was prepared to continue to provide services to her. It submitted that her failure then to reject the proposed varied terms for the deposit of funds into the account constituted an acceptance of the proposed variation. Consideration for the variation was the bank's continued provision of banking services.
The NAB's case at trial was not that the initial contract was varied, but that the NAB Conditions were terms of the contract from its inception. Nonetheless, the submission is open to it.
I do not accept the submission. There was no express term in the Authority Card that entitled the NAB to discontinue the service it offered to Ms Dionys, but I am prepared to assume that it could be implied that the NAB could do so on giving reasonable notice. But it does not follow that by handing over a booklet that purported to set out the terms and conditions of an account, but were not in fact terms and conditions of the account, the NAB was offering to vary the terms of the contract and that Ms Dionys should be taken to have accepted that offer by not objecting to the terms.
The NAB referred to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [73] and Brambles Holdings Ltd v Bathurst City Council. [74] In Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd it was found that a party who accepted services that had been offered on the terms of a document proffered by the offeror was bound by the terms of the document upon which the offer was made. McHugh JA said (at 535) that: "… where an offeree with a reasonable opportunity to reject the offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer, it is open to the tribunal of fact to hold that the offer was accepted according to its terms."
This was followed in Brambles Holdings Ltd v Bathurst City Council where there was an existing contract and the Council wrote a letter that was treated as an offer to vary the contract that was accepted by conduct. [75]
In this case, taking the evidence of the NAB at its highest, there was no proposal by the NAB to vary the contract. If she had thought about it at all, Ms Dionys would have been entitled to treat the belated proffer of the NAB Conditions as an ineffectual attempt to impose retrospectively additional terms and conditions of the contract. Although, on this assumption, she would have had a reasonable opportunity to consider the conditions before the first withdrawal was made, a reasonable person in the position of the NAB could not have considered her failure to reject the terms, or the subsequent deposit of moneys by her solicitor into her account, or the subsequent withdrawal by Mr Dimaris of moneys from her account, to have been an acceptance by her of the NAB's proffered terms and conditions that included clause 5.18.
For these reasons, and those given by Sackville AJA, I also would dismiss the appeal.

[24]

Endnotes

Dionys v National Australia Bank Ltd (District Court, 12 June 2005, unrep) (Primary Judgment).
Clause 5.18 is reproduced at [16] below.
[1959] HCA 8; 101 CLR 298.
West v Commercial Bank of Australia Limited [1935] HCA 14; 55 CLR 315.
As to the onus of proof, see [56]-[58] below.
The cases referred to included Robertson v Balmain New Ferry Co Ltd [1906] HCA 83; 4 CLR 379 and Council of the City of Sydney v West [1965] HCA 68; 114 CLR 481.
NC Seddon, RA Bigwood and MP Ellinghaus, Cheshire and Fifoot's Law of Contract (10th Aust ed, 2012) at [10.66].
Causer v Browne [1952] VLR 1 at 5-7 (Herring CJ), followed in QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66 at [62]-[63].
Hood v Anchor Line (Henderson Brothers) Ltd [1918] AC 837 at 841 (Lord Finlay LC), 845 (Viscount Haldane), 849 (Lord Parmoor).
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 384 (Mahoney P, Waddell AJA agreeing).
Ibid at 384-385 (Mahoney P), 398 (Clarke JA).
Commonwealth Trading Bank of Australia v Sydney Wide Stores Pty Ltd [1981] HCA 43; 148 CLR 304.
Tai Hing Ltd Cotton Mill v Liu Chong Hing Bank Ltd [1986] AC 80 at 101 (Privy Council); A Tyree, Banking Law in Australia (8th ed, 2014) at [7.2]-[7.3].
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] 1 AC 80 (PC); National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 385-387 (Mahoney P); 399 ff (Clarke JA).
(1991) 22 NSWLR 1 at 7.
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA); Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ).
[1988] HCA 32; 165 CLR 197 at 228, citing Daly v General Steam Navigation Co Ltd (The "Dragon") [1979] 1 Lloyd's Rep 257 at 262 (Brandon J). See also Oceanic Sun Line Special Shipping Company Inc v Fay at 208 (Wilson and Toohey JJ); Baltic Shipping Co v Dillon ("Mikhail Lermentov") (1991) 22 NSWLR 1 at 24 (Kirby P).
Baltic Shipping Co v Dillon ("Mikhail Lermentov") at 8-9 (Gleeson CJ).
Cf Council of the City of Sydney v West at 491-492 (Kitto J); Cheshire and Fifoot Law of Contract at [10.72].
[1986] AC 80 at 110.
Toll (FGTC) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [42].
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.27(2).
The Amended Defence was filed on 20 December 2013.
London International Trust Ltd v Barclays Bank Ltd [1980] 1 Lloyd's Rep 241 at 248-249 (Slynn J); Majesty Restaurant Pty Ltd (In Liq) v Commonwealth Bank of Australia (1998) 47 NSWLR 593 at 611 (Hunter J).
Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[30] (Gleeson CJ, Gummow and Kirby JJ).
See at [26] above.
Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 481 (Gillard J), citing Pole v Leask (1863) 33 LJ Ch 155 at 162 (Lord Cranworth); G E Dal Pont, Law of Agency (3rd ed, 2014) at [1.10].
Expectations Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 at [69], [72]-[79] per curiam; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [5], [10] (Gleeson CJ); [85]-[88] (Kirby J); [166]-[168] (Callinan and Heydon JJ).
See at [106] above.
[1935] HCA 14; 55 CLR 315 at 322.
[1925] HCA 47; 37 CLR 1 at 19. Isaacs J dissented as to the result, but his Honour's statement of principle is uncontroversial: see Keighley, Maxsted & Co v Durant [1901] AC 240 at 246 (Lord Macnaghten); Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [131] per curiam.
Quarante Pty Ltd v The Owners Strata Plan No. 67212 [2008] NSWCA 258 at [110] (Sackville AJA, Campbell and Bell JJA agreeing), citing G E Dal Pont, Law of Agency (2nd ed, 2008) at [5.7]. This passage is repeated in Law of Agency (3rd ed, 2014) at [5.7].
Taylor v Smith [1926] HCA 16; 38 CLR 48 at 54-55 (Knox CJ), 59 (Higgins J), 60 (Rich J), 61-62 (Starke J).
Petersen v Moloney [1951] HCA 57; 84 CLR 91 at 101 per curiam.
G E Dal Pont, Law of Agency (3rd ed, 2014) at [5.28], quoted with approval in Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [132].
[1909] HCA 78; 9 CLR 615 at 625.
Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262 at [74] (per curiam); see also Taylor v Smith at 59 (Higgins J); G E Dal Pont, Law of Agency (3rd ed, 2014) at [5.31]; Commonwealth Bank of Australia v Perrin [2011] QSC 274 at [146]-[147] (McMurdo J).
If Mr Dimaris forged Ms Dionys' signature on the withdrawal slips, an issue would arise as to whether his acts were capable of ratification: see G E Dal Pont, Law of Agency (3rd ed, 2014) at [5.15].
UCPR r 51.53(2).
UCPR r 51.53(4).
UCPR r 51.53(1).
[1909] HCA 78; 9 CLR 615 at 628 (Griffith CJ and Barton J).
[1935] HCA 14; 55 CLR 315 at 322.
[1959] HCA 8; 101 CLR 298.
JD Heydon, Cross on Evidence, Australian Edition (loose leaf) at [1215].
Payne v Parker [1976] 1 NSWLR 191 at 201 (Glass JA); O'Donnell v Reichard [1975] VR 916 at 929 (Newton and Norris JJ).
See at [21] above.
See, for example, Brown v Westminster Bank Ltd [1964] 2 Lloyd's LR 187 at 199; Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at [7], [8], [25]; Groves v Groves [2013] QSC 277 at [122].
UCPR r 51.53(4).
At [137]-[141].
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 at [35]-[36].
(1877) 2 CPD 416.
At 421.
At 423.
At 425-426.
At 428.
[1918] AC 837.
At 844.
At 847.
(1952) VLR 1.
At 4.
At 5.
[1964] 1 AII ER 430.
[1971] 2 QB 163.
(1988) 165 CLR 197.
(1991) 22 NSWLR 1 at 8 and 25.
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1974] 1 All ER 1059.
[1969] 2 AC 31.
[1969] 2 AC 31 at 90, 104; see also to the same effect Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427.
Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559.
[2015] QSC 290.
Citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].
(1988) 14 NSWLR 523.
(2001) 53 NSWLR 153 at [82].
At 171. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2016

Parties

Applicant/Plaintiff:

National Australia Bank Limited

Respondent/Defendant:

Dionys as Trustee for the Angel Family Trust

Legislation Cited (1)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (37)

7 NSWLR 593 Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559 McCutcheon v David MacBrayne Ltd [1964] 1 All ER 430 National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 O'Donnell v Reichard [1975] VR 916 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; 165 CLR 197 Parker v South Eastern Railway Company (1877) 2 CPD 416 Payne v Parker [1976] 1 NSWLR 191 Petersen v Moloney [1951] HCA 57; 84 CLR 91 Pole v Leask (1863) 33 LJ Ch 155 QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66 Quarante Pty Ltd v The Owners Strata Plan No. 67212 [2008] NSWCA 258 Robertson v Balmain New Ferry Co Ltd [1906] HCA 83; 4 CLR 379 Rowe v B & R Nominees Pty Ltd [1964] VR 477 Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; 165 CLR 197 Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2015] QSC 290 Tai Hing Ltd Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 Taylor v Smith [1926] HCA 16; 38 CLR 48 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Toll (FGTC) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance Australia (Australia) Ltd [2010] HCA 9; 240 CLR 444 West v Commercial Bank of Australia Limited [1935] HCA 14; 55 CLR 315 Texts Cited: A Tyree, Banking Law in Australia (8th ed, 2014) NC Seddon, RA Bigwood and MP Ellinghaus, Cheshire and Fifoot's Law of Contract (10th Aust ed, 2012) G E Dal Pont, Law of Agency (3rd ed, 2014) JD Heydon, Cross on Evidence, Australian Edition (loose leaf) Category: Principal judgment Parties: National Australia Bank Limited (Appellant) Samantha Dionys as Trustee for the Angel Family Trust (Respondent) Representation: Counsel: Mr PD Reynolds (Appellant) Mr CD Wood / Mr JEF Brown (Respondent)

[2011] QSC 274

[2013] QSC 277

[2012] VSCA 262

[2009] NSWCA 66

[2015] QSC 290

(1991) 22 NSWLR 1

(2001) 53 NSWLR 153

(1991) 22 NSWLR 389

(1988) 14 NSWLR 523

(1998) 47 NSWLR 593

(1996) 39 NSWLR 377

(1926) 38 CLR 48