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Res Ipsa

Westpac Banking Corporation v M M Kembla New Zealand Limited

Court
Court of Appeal
Judgment
9 November 2000

Areas of law

Banking Law - Electronic Funds Transfer - Paying Bank - Collecting BankTort - Negligence - Duty of CareEquity - Constructive Trust - Knowing ReceiptCivil Procedure - Summary Judgment
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Judgment analysis

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Facts

The respondent, Kembla, used an electronic funds transfer system operated by its bank, ANZ, to pay its creditors. The system's security required operations to be authorised by two separate authorised user employees, each using a personal identification number (PIN). Between April 1992 and April 1997, a Kembla employee, Ms Chilcott, stole over $2 million. The thefts were accomplished either by deceiving other authorised users to obtain their PINs or by using a second PIN allegedly sent directly to her by ANZ because she was designated as Kembla's 'System Administrator'. She concealed the fraudulent transfers, which were made from Kembla's ANZ accounts to accounts she maintained with ANZ, Westpac, and BNZ. Kembla sued ANZ as the paying bank for breach of a duty of care, and sued both ANZ and Westpac as collecting banks on the grounds of knowing receipt. The banks applied for summary judgment in the High Court, which was refused by the Master. The banks appealed this refusal to the Court of Appeal.

Held

  1. Summary judgment for the defendant banks was inappropriate because the plaintiff's claims for breach of duty of care and knowing receipt were arguable and depended on complex and uncertain questions of law and fact which could not be determined without a full trial, discovery, and expert evidence.
  2. It was arguable that the contractual exclusion clauses did not excuse the paying bank (ANZ) from liability for negligence, particularly in relation to the secure delivery of system information (PINs and passwords), as the clauses were not sufficiently clear and unambiguous.
  3. The claims for knowing receipt against the collecting banks (ANZ and Westpac) could not be summarily dismissed because the standard of knowledge required to establish liability and the question of what constitutes 'beneficial receipt' by a bank are unsettled areas of law in New Zealand, and the factual basis for imputing knowledge required further investigation.

Orders

The appeals are dismissed. The respondent is entitled to costs of $2,500 from each appellant, together with reasonable disbursements to be fixed by the Registrar and to be paid as to one-half by each appellant.

Key passages3

The onus is on the defendant applying for summary judgment to prove on the balance of probabilities that the plaintiff cannot succeed.

“The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed.”

The extent of knowledge required to make a bank a constructive trustee is not settled in New Zealand law.

“Both appellants acknowledge that the extent of knowledge required to make a bank a constructive trustee is not settled on the authorities.”

The law on whether a bank has received funds beneficially for the purposes of liability for knowing receipt is 'hopelessly confused and sits ill with legal principle and banking practice'.

“Ross Cranston in Principles of Banking Law (1997, Clarendon) 207, expresses the view that 'the law on whether a bank has received funds beneficially is hopelessly confused and sits ill with legal principle and banking practice'.”

Cases mentioned in judgment

  • Agip (Africa) Ltd v Jackson & Ors [1992] 4 All ER 385, 404

  • Agip (Africa) Ltd v Jackson [1990] Ch 265

  • Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 681

  • Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l'Industrie en France SA [1992] 4 All ER 161

  • BP Refinery (Westernport) Pty v Shire of Hastings (1977) 16 ALR 363, 376

  • Brownie Wills v Shrimpton [1998] 2 NZLR 320, 324

  • E E Caledonia Ltd v Orbit Valve Co Europe [1993] 4 All ER 165)

  • Eatwell Livestock Ltd v Bank of New Zealand (2000) 13 PRNZ 671

  • Equiticorp Industries Ltd v Hawkins [1991] 3 NZLR 700

  • Fleming v Securities Commission [1995] 2 NZLR 514

  • Henderson v Merrett Syndicates [1995] 2 AC 145, 194 per Lord Goff

  • Livingstone v Roskilly [1992] 3 NZLR 230 per Thomas J

  • McGechan on Procedure

  • Pemberton v Chappell [1987] 1 NZLR 1

    Applied
  • Pizza Pizza Ltd v Gillespie (1990) 45 CPC (2d) 168

    Distinguished
  • Powell v Thompson [1991] 1 NZLR 597

  • Producer Meats Ltd v Thomas Borthwick & Sons Ltd [1964] NZLR 700

    Applied
  • Smith v South Wales Switchgear Ltd [1978] 1 All ER 18, [1978] 1 WLR 165 (HL)

    Applied
  • Vickery v Waitaki International Ltd [1992] 2 NZLR 58

    Applied
  • Westdeutsche Bank v Islington [1996] AC 669

  • Westpac Banking Corporation v Ancell (1993) 4 NZBLC 103,259

    Distinguished
  • Westpac Banking v Savin [1985] 2 NZLR 41

  • White v John Warrick & Co Ltd [1953] 2 All ER 1021, [1953] 1 WLR 1285

    Applied
  • White v Jones [1995] 2 AC 207, 274

  • "Tracing the Proceeds of Fraud" (1991) 107 Law Quarterly Review 71, 83

Legislation mentioned

  • High Court Rules, r 136, r 136(1), r 136(2), r 186, r 187
  • Financial Transactions Reporting Act 1996