Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9

Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9

The Court held that the communication by Westpac that dishonoured the cheques, occasioned by its error, was made on a privileged occasion, due to the statutory and business relationship requiring communication to payees. Thus, qualified privilege applied and the defamatory imputations arising from the notation 'Refer to Drawer' were protected. The contract damages award for Homewise was increased to $117,000, reflecting loss due to breach by Westpac, with due consideration to mitigation.

Jurisdiction
Australia
Judgment Date
09 February 2009
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal by Mr Aktas dismissed with costs; appeal by Homewise upheld in part; award of damages for contract quashed and $117,000 substituted; otherwise appeal by Homewise dismissed; Homewise to pay 60% of Westpac's costs.
Legal Topics
['qualified Privilege' 'wrongful Dishonour of Cheque' 'assessment of Damages' 'mitigation of Damages' 'corporate Defamation' 'breach of Contract by Bank']
['defamation' 'contract Law' 'banking Law'] ['qualified Privilege' 'wrongful Dishonour of Cheque' 'assessment of Damages' 'mitigation of Damages' 'corporate Defamation' 'breach of Contract by Bank']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether qualified privilege attaches to bank's communication created by its error in dishonouring cheques" 'Assessment of damages for defamation and breach of contract' 'Duty to mitigate damages']

Ratio Decidendi

The Court held that the communication by Westpac that dishonoured the cheques, occasioned by its error, was made on a privileged occasion, due to the statutory and business relationship requiring communication to payees. Thus, qualified privilege applied and the defamatory imputations arising from the notation 'Refer to Drawer' were protected. The contract damages award for Homewise was increased to $117,000, reflecting loss due to breach by Westpac, with due consideration to mitigation.

Court Disposition

Appeal by Mr Aktas dismissed with costs; appeal by Homewise upheld in part; award of damages for contract quashed and $117,000 substituted; otherwise appeal by Homewise dismissed; Homewise to pay 60% of Westpac's costs.

Orders

  • ['Appeal by Mr Aktas dismissed with costs.' 'Appeal by Homewise upheld in part. Award of damages for contract in the court below quashed and award of $117,000 substituted.' 'Otherwise appeal by Homewise dismissed.' "Homewise ordered to pay 60 per cent of Westpac's costs of the appeal."]