Timms & Ors v Commonwealth Bank of Australia & Ors [2005] NSWCA 137

Timms & Ors v Commonwealth Bank of Australia & Ors [2005] NSWCA 137

The court upheld Barrett J's findings that the appellants failed to prove the bank made the alleged representations regarding the business’s viability, nor did the bank's silence after the November 1991 letter amount to misleading conduct. The claim that the bank was obliged to inform the appellants about the non-certification of accounts also failed, as the appellants already had knowledge of this. As to the accountants, the court found the retainer was limited, as contended by the accountants, and there was no breach of contract or duty. Essentially, credibility findings against the appellants and the inability to disturb those findings on appeal resulted in the dismissal of the appeal.

Parties
Appellants: Timms & Ors; First Respondent: Commonwealth Bank of Australia; Second Respondents (accountants): Leslie Ludovic Rosenfeld and Alfred Kant
Jurisdiction
Australia
Judgment Date
13 May 2005
Procedural Posture
Appeal / Judgment on Second Appeal From Retrial
Outcome
Appeal dismissed with costs.
Legal Topics
Misleading and Deceptive Conduct, Trade Practices Act 1974 S 52, Negligence, Breach of Fiduciary Duty, Professional Negligence, Due Diligence, Bank Customer Relationship, Burden of Proof, Scope of Retainer
Commercial Law Banking Law Tort Law Misleading and Deceptive Conduct Trade Practices Act 1974 S 52 Negligence Breach of Fiduciary Duty Professional Negligence +4 more

Case Brief

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Parties

Timms & Ors

Appellants

Commonwealth Bank of Australia

First Respondent

Leslie Ludovic Rosenfeld and Alfred Kant

Second Respondents (accountants)

Procedural Posture

Appeal / Judgment on Second Appeal From Retrial

Legal Issues

  1. 1 Whether the bank engaged in misleading and deceptive conduct under s 52 of the Trade Practices Act 1974
  2. 2 Whether the bank breached fiduciary duty
  3. 3 Whether the bank was negligent in its dealings related to the purchase and finance of the business

Ratio Decidendi

The court upheld Barrett J's findings that the appellants failed to prove the bank made the alleged representations regarding the business’s viability, nor did the bank's silence after the November 1991 letter amount to misleading conduct. The claim that the bank was obliged to inform the appellants about the non-certification of accounts also failed, as the appellants already had knowledge of this. As to the accountants, the court found the retainer was limited, as contended by the accountants, and there was no breach of contract or duty. Essentially, credibility findings against the appellants and the inability to disturb those findings on appeal resulted in the dismissal of the appeal.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.