Cachia v Westpac Financial Services Ltd [2005] NSWCA 239 (11 July 2005)

CITATION: Cachia v. Westpac Financial Services Ltd. [2005] NSWCA 239

FILE NUMBER(S):

41041/04

HEARING DATE(S): 11 July 2005

JUDGMENT DATE: 11/07/2005

PARTIES:

Salv Laurence Cachia - claimant

Westpac Financial Services Ltd. - opponent

JUDGMENT OF: Giles JA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1685/04

LOWER COURT JUDICIAL OFFICER: Master Macready

COUNSEL:

Claimaint in person

Mr. R.J. Weber SC for opponent

SOLICITORS:

Mallesons Stephen Jaques, Sydney for opponent

CATCHWORDS:

PROCEDURE

RES JUDICATA - Proceedings for damages for fraud in obtaining judgment - Whether necessary to have judgment set aside.

LEGISLATION CITED:

DECISION:

Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41041/04

ED 1685/04

GILES JA

HODGSON JA

Monday 11 July 2005

CACHIA V. WESTPAC FINANCIAL SERVICES LTD.

Judgment

1 HODGSON JA: In the proceedings which were summarily dismissed by Master Macready, the claimant alleged that a certain judgment in Federal Court proceedings was procured by fraud and he sought damages, being the loss of value of his Federal Court cause of action, the costs he was ordered to pay, and aggravated punitive and exemplary damages.

2 The claimant says the Master was mistaken in his reasons for dismissing the proceedings, because the Master said incorrectly that he was attacking the Federal Court decision whereas he was not doing so. However, the difficulty with that submission is that the claimant cannot obtain damages on the basis that he has lost the value of his Federal Court cause of action or that he should not have been ordered to pay the costs of those proceedings, without having the Federal Court decision set aside, because unless and until that decision is set aside it conclusively establishes that his cause of action had no value and that he was properly ordered to pay costs. Furthermore, aggravated punitive and exemplary damages cannot be recovered in a cause of action for fraud unless some ordinary compensatory damages are established.

3 It is possible to bring proceedings to claim relief on the basis that a previous judgment has been obtained by fraud, but it is necessary in those proceedings to apply to have that judgment set aside, for the reasons I have given; so that ordinarily such proceedings have to be in the Court that actually made the judgment, at least if that Court is a superior court as is the Federal Court.

4 I would add in addition that, in my opinion, the Master gave sound reasons for thinking that the current allegations of fraud could not possibly succeed.

5 For those reasons, in my opinion this application for leave to appeal should be dismissed with costs.

6 GILES JA: I agree and that will be the order.

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LAST UPDATED: 13/07/2005