NATIONAL AUSTRALIA BANK LTD v NEMUR VARITY PTY LTDSUPREME COURT OF VICTORIAPhillips, Callaway and Batt JJA
14–16 May 2001, 01 March 2002[2002] VSCA 0018Damages — Tort — Conversion — Contract — Breach — Causation — Remoteness — Test of remoteness for damages for conversion — Reasonable foreseeability — Knowledge or express notice — Banks and banking — Cheque — Telegraphic transfer — Bank liable to customer for converting cheques and breach of contractual duty of care — Whether damages limited to amounts of cheques and telegraphic transfer — Consequential losses — Lost profits from loss of business — Whether recoverable — Whether losses caused by the bank's default — Whether too remote — Whether merely incidental.
After collecting insurance premiums from its customers, an insurance broker drew four cheques payable to the insurer or bearer for the premiums and sent the cheques to another insurance intermediary which purported to be acting as agent for the insurer. The intermediary fraudulently endorsed two of the cheques for payment to a third party and fraudulently deposited all of them at another branch of the paying bank for collection by the third party. The bank credited the proceeds to the third party's account. The intermediary also induced the broker to use another cheque intended to pay for premiums to procure a telegraphic transfer of funds into the account of the third party with the bank rather than of the named insurer. A sixth cheque was subsequently drawn by the broker in favour of the intermediary in payment of premiums for insurance purportedly arranged by the intermediary with the insurer. The proceeds of this cheque were misappropriated through the intermediary.