National Australia Bank Ltd v Maher

[1999] VSCA 189

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Whether judgment for damages to be assessed is final or interlocutory
4. › Merger of causes of action in final judgment
5. › Introduction of new causes of action at assessment of damages
6. › Whether amendment permissible after liability determined
1. Tort
2. › Trespass to land
3. › Entry by Sheriff under warrant of possession
4. › Whether execution of court judgment constitutes trespass
5. › Sheriff as officer of court not agent of judgment creditor
1. Tort
2. › Action on the case
3. › Intentional harm
4. › Whether fraud of bank officer attributable to bank for purposes of action on the case
5. › Whether officers responsible for obtaining possession knew of fraud
1. Damages
2. › Exemplary damages
3. › Whether exemplary damages may be awarded by judge sitting alone without jury

Quick Take

A judgment for a plaintiff against a defendant 'for damages to be assessed' is final as to liability, causing merger of the plaintiff's causes of action. New causes of action cannot be introduced at the assessment stage. The distinction between Hall v Busst and the Lapthorne/Burns v Lipman line may turn on whether damage is of the gist of the cause of action. A Sheriff executing a warrant of possession under court judgment is not the agent of the judgment creditor, so the judgment creditor is not liable in trespass for the Sheriff's entry.