Narrow scope carnie v esanda nsw equivalent rule

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Narrow scope: Carnie v Esanda NSW Equivalent Rule considered in Campbells Cash and Carry Pty Ltd v Fostif (2006 HCA)
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Some more history Markt v Knight Steamship (1910 Eng CA) Defendant was shipper, carried large cargo from many customers. 45 in total. Sunk by Russian war ship during Russo-Japanese war. Ps all lost cargo, sued under UK equivalent of order 18 in a representative capacity for breach of contract and negligence on the part of the shipping company. P to represent its own interest and interest of other 44 victims. All had their own contract. 45 separate contracts. Cargo being shipped to different destinations. P alleged they had suffered a common wrong – ie, one wrongful act which affected all Ps.
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Some more history Markt v Knight Steamship (1910 Eng CA) CA didn’t agree: even though terms identical, each contract had different cargo and prices etc. So each claim had to be examined on its individual merits. Eg, different defences might apply against one as opposed to other. Maybe a set off against one and not another. Not appropriate as P’s didn’t have the same interest as there were separate contracts.
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Some more history Markt v Knight Steamship (1910 Eng CA) Plus Fletcher Moulton LJ said damages are by their nature a personal remedy, and so no representative action should lie where damages is the main remedy sought. Why? Must be assessed separately.
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Some more history So no O 18 type proceeding where: claims of the representative & those they seek to represent arise out of separate contracts, and/or Damages in issue & require separate assessment Thus narrow possibilities for representative proceedings.
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History cont. This approach was revised by HCA in 1995 in Carnie v Esanda . Mr and Mrs C were farmers. Borrowed money from Esanda Finance to buy farm equipment. Fell behind in payment so re-financed with a revised loan agreement with Esanda to enable them to pay according to their now-reduced means. This agreement had to comply with certain statutory requirements When they finally defaulted on that agreement, they sought to set aside the revised agreement on the basis that it did not comply with those statutory requirements.
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History cont. Carnie v Esanda (HCA 1995) Esanda were supposed to disclose certain fees, which were not disclosed, thus the Carnies sought to have it declared void. They did so on their own behalf and behalf of many others who had also entered such agreements with Esanda. High Court saw this as an appropriate case for the representative proceeding on the basis of the NSW equivalent of order 18.
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History cont. Carnie v Esanda (HCA 1995) O 18 is a “flexible rule of convenience” Should not be interpreted restrictively Even though Carnies & represented parties had separate contracts , did not eliminate convenience of finding a common right to a release Not necessary for representatives to identify every member of the class; just identify class with sufficient particularity
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