Unexpected results

Often a party to a dispute is unwilling to negotiate because they feel that have a ‘watertight case’ and are sure to win in court. However, the facts and peculiarities of the case will have a significant bearing on the outcome. These facts and peculiarities may not have been adequately considered, assessed and compared by the parties to generate that degree of certainty. Additionally, there are also some very surprising decisions as demonstrated below.

• A Federal Court rejected a $35 million penalty against Westpac Bank, a negotiated settlement between it and the Australian Securities Commission (ASIC) for Westpac’s admitted breach of responsible lending laws. Ordinarily the Court would rubber-stamp these negotiated settlements but the judge in this instance questioned whether there was in fact a breach. See AustralianBroker 13 Nov 2018 “Westpac $35m settlement rejected”.
• A man’s jail sentence for fraud, after as a result of a bank error, withdrawing and spending $2.1 million was overturned. Despite the fact that he was not entitled to the money, acted “extremely foolishly” and dishonestly, on appeal it was found that he did not deceive the bank. See Sydney Morning Herald, 1 December, 2016 “Man who withdrew $2.1 million after bank error wins fraud appeal”.
• In a New Zealand case a prisoner, with convictions for attacking a police officer, unlawful possession of firearms, aggravated robbery, theft, burglary and trying to escape from custody, won a compensation payout for breach of privacy and hurt feelings because a government department had incorrectly listed him as having a domestic violence conviction.
• In Perpetual Trustees Victoria Ltd v Xiao the Supreme Court of Victoria concluded that where the loan agreement on which a lender relies is forged, the lender cannot rely on its registered mortgage, even in circumstances where the lender had no knowledge of the fraud.
• A couple and their insurer have been ordered to pay $55,000 after an elderly aunt slipped on a gumnut while visiting their Brisbane home. The judge ruled that they were negligent in failing to provide and maintain a safe access to their house via the stairs by taking appropriate steps to ensure that the stairs remained free of gumnuts.
• Publicans and bouncers can be held liable for injuries suffered by their patrons if they fail to stop thuggish violence before it occurs. The judge said bouncers had a duty to anticipate and prevent violence and in this instance alert and vigilant security guards had 2 1/2 minutes to intervene before the plaintiff was king hit but instead watched from across the road. New South Wales Supreme Court.
• In Bendigo and Adelaide Bank v Stamatis [2014] NSWSC 1233, the son gave evidence that he had forged his parents’ signature on a mortgage. The handwriting expert agreed and the judge so held. In assessing the son’s credibility, the judge took into account that, in addition to his ‘gross dishonesty’ in mortgaging his parents’ house without their permission, the son had been convicted of four counts of supplying commercial quantity of drugs. Nevertheless, the judge noted the son in the witness box ‘seemed honest and intelligent’ and did not refer the papers to the Director of Public Prosecutions. Instead his wrath was reserved for the lender, whose conduct in attempting to enforce the mortgage he found unconscionable. Bransgrove M, “Avoiding Mortgage Fraud in Australia: Toolkit for Mortgage Professionals”, p. xvi

The point to be noted from the above is that despite the apparent strength of your legal arguments, facts, intentions, peculiarities and the like may differ sufficiently from established precedents to make a difference to the outcome. Furthermore, as can be seen from the above, it is not unusual for judges to see the evidence differently and arrive at unexpected decisions. It is much better, quicker and less costly to negotiate during mediation. It is also an outcome to which the disputing parties have contributed and, as a result, have an interest in upholding.