Guijar v Australia and New Zealand Banking Group Limited; Australia and New Zealand Banking Group Limited v Guijar [2012] NSWCA 10

Guijar v Australia and New Zealand Banking Group Limited; Australia and New Zealand Banking Group Limited v Guijar [2012] NSWCA 10

Leave to appeal for Mr Guijar was refused because the Magistrate had in substance rejected the evidence supporting the alleged February 2004 agreement, and in any event Mr Guijar's own evidence could not establish the pleaded contract: his statement that he would pay money off the loan, met by silence, was not a contract. Any retrial on that issue would be futile and the recoverable damages would be too small to warrant leave. The Bank was granted leave and its appeal allowed because, although the Magistrate erred in law by failing to deal with the alleged April 2005 agreement, remittal would be futile: the alleged refinancing agreement lacked certainty as to term, the evidence did not...

Jurisdiction
Australia
Judgment Date
14 February 2012
Procedural Posture
Applications for Leave to Appeal and Appeal From a Supreme Court Decision on Appeal From the Local Court / Court of Appeal
Outcome
Mr Guijar's application for leave to appeal dismissed; the Bank's application for leave to appeal granted; the Bank's appeal allowed; Supreme Court orders set aside; appeal from Magistrate Maloney's decision dismissed with costs.
Legal Topics
['oral Contracts Between Bank and Customer' 'actual Authority' 'ostensible Authority' 'measure of Damages' 'duty to Give Reasons' 'remittal for Retrial' 'local Court Appeal on Question of Law' 'costs']
['banking' 'contracts' 'appeals' 'civil Procedure'] ['oral Contracts Between Bank and Customer' 'actual Authority' 'ostensible Authority' 'measure of Damages' 'duty to Give Reasons' 'remittal for Retrial' 'local Court Appeal on Question of Law' 'costs']

Case Brief

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Procedural Posture

Applications for Leave to Appeal and Appeal From a Supreme Court Decision on Appeal From the Local Court / Court of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to Mr Guijar to appeal concerning the alleged oral agreement made with the Bank in February 2004.' 'Whether the Magistrate considered and gave adequate reasons concerning the alleged February 2004 oral agreement.' 'Whether the Magistrate erred in law by failing to deal with the alleged oral agreement made on 21 April 2005.' 'Whether the evidence concerning the alleged 21 April 2005 agreement warranted remitting the matter for retrial.' 'Whether Bank employees had actual or ostensible authority to bind the Bank to the alleged agreements.' 'What damages, if any, could flow from placing $51,000 in a term deposit rather than applying it to reduce the Ultimo loan.']

Ratio Decidendi

Leave to appeal for Mr Guijar was refused because the Magistrate had in substance rejected the evidence supporting the alleged February 2004 agreement, and in any event Mr Guijar's own evidence could not establish the pleaded contract: his statement that he would pay money off the loan, met by silence, was not a contract. Any retrial on that issue would be futile and the recoverable damages would be too small to warrant leave. The Bank was granted leave and its appeal allowed because, although the Magistrate erred in law by failing to deal with the alleged April 2005 agreement, remittal would be futile: the alleged refinancing agreement lacked certainty as to term, the evidence did not...

Court Disposition

Mr Guijar's application for leave to appeal dismissed; the Bank's application for leave to appeal granted; the Bank's appeal allowed; Supreme Court orders set aside; appeal from Magistrate Maloney's decision dismissed with costs.

Orders

  • ['The application of Mr Guijar for leave to appeal from the decision in the Supreme Court given on 3 March 2011 is dismissed.' 'The application of the Bank for leave to appeal from the decision in the Supreme Court given on 3 March 2011 is granted.' 'Order the Bank to file a Notice of Appeal in the form of the draft...