SUPREME COURT OF QUEENSLAND

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1 SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: BS 7979 of 2015 DIVISION: PROCEEDING: National Australia Bank Ltd v Bluanya Pty Ltd & Anor [2018] QSC 49 NATIONAL AUSTRALIA BANK LIMITED ABN (plaintiff) v BLUANYA PTY LTD ACN AS TRUSTEE FOR THE WILLIAMS FAMILY TRUST NO 2 (first defendant) TANYA LYNETTE WILLIAMS (second defendant) Trial Division Application DELIVERED ON: 12 March 2018 DELIVERED AT: Brisbane HEARING DATE: 14 July 2017 JUDGE: ORDER: Brown J The orders of the Court are: 1. That the whole of the amended defence and counterclaim be struck out and the defendants be given liberty to replead. 2. That the further amended defence and counterclaim be filed and served by 30 April That summary judgment is refused. 4. That the parties provide submissions as to costs by 20 March That the matter be listed before Mullins J for review at 9:15 am on 7 June CATCHWORDS: PROCEDURE CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS ENDING PROCEEDINGS EARLY SUMMARY DISPOSAL where the plaintiff applies for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) against the second defendant in relation to part of the claim where the dispute

2 2 COUNSEL: SOLICITORS: arises from the alleged default of the defendant of loan agreements between the plaintiff as lender and the defendants as borrowers where the plaintiff seeks orders that the second defendant deliver up possession of the land subject of the loan agreement or otherwise pay moneys to the plaintiff pursuant to the agreement where the second defendant claims misleading and deceptive conduct and on the basis that the plaintiff breached the agreement whether the defendant has no real prospect of successfully defending the relevant part of the plaintiff s claim whether there is no need for a trial of the relevant part of the plaintiff s claim PROCEDURE CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS PLEADINGS STRIKING OUT where the plaintiff seeks, in the alternative, an order that certain paragraphs of the amended defence and counterclaim be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) or the inherent jurisdiction of the Court where the plaintiff complains that paragraphs of the pleading variously: fail to plead material facts; fail to plead particulars; do not disclose any reasonable cause of action; have a tendency to delay or prejudice a trial; are false and scandalous; are vague; are irrelevant; and are an abuse of the court process where the second defendant is self-represented whether the application to strike out should be granted for all or part of the amended defence and counterclaim Uniform Civil Procedure Rules 1999 (Qld) rr 171, 292 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Schultz v Bank of Queensland [2014] QSC 305 Thorne v Kennedy (2017) 350 ALR 1 Willmott v McLeay [2013] QCA 84 Yerkey v Jones (1939) 63 CLR 649 M S Trim for the plaintiff The second defendant appeared on her own behalf Gadens Lawyers for the plaintiff The second defendant appeared on her own behalf The nature of the application [2] This is an application brought by the plaintiff for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) against the second defendant in respect of the relief sought at paragraphs 2(a) and (c) of the claim, seeking orders that: (a) Within 28 days, the second defendant deliver up to the plaintiff possession of the land described as Lot 8 on SP , County of Flinders, Parish of

3 3 Uxbridge, Title Reference and known as 8/10 Ocean Beach Drive, Agnes Water in the State of Queensland; and (b) The second defendant pay to the plaintiff the sum of $445, plus interest pursuant to the home loan facility. [3] In the alternative, the plaintiff seeks an order that certain paragraphs of the amended defence and counterclaim be struck out pursuant to r 171 of the UCPR or the inherent jurisdiction of the Court. [4] The application is only directed to part of the claim of the plaintiff and does not seek relief in relation to the overdraft facility or from the first defendant, not does it seek judgment in relation to the counterclaim. [5] The second defendant appeared for herself although she had the assistance of Ms Keys who describes herself as a self employed advocate providing professional advocacy (paid and unpaid) to customers in dispute with their Bank(s) or otherwise Creditor(s). 1 She has been acting as the second defendant s advisor throughout. It was not apparent whether she has any legal qualifications. It is unfortunate given the complexity of the defences and claims the second defendant has sought to raise that she does not have legal representation. Background [6] The application for summary judgment was first filed by the plaintiff on 31 March 2016 after a lengthy exchange of correspondence between the plaintiff and the defendants for over 12 months. On 19 May 2016 consent orders were made providing, inter alia, for the defendants to file and serve any amended defence and counterclaim by 9 June 2016 and adjourning the summary judgment application. On 15 June 2016 the defendants filed an amended defence and counterclaim. On 29 June 2016 the plaintiff filed a reply and answer to the amended defence and counterclaim. On 24 February 2017 the plaintiff filed an amended application and two supporting affidavits. [7] The second defendant s case appears to be that following the tragic death of her husband in 2009, she tried to negotiate with the bank in relation to an overdraft facility for which the second defendant is the guarantor and in relation to the home loan facility for which she was the borrower. Following her husband s death, the application was granted for hardship assistance which included, amongst other things, a reprieve from repayments for a period of approximately 12 months in respect of the overdraft facility of the first defendant. 2 In oral submissions she submitted that that was six months, not twelve months. Matters not in issue [8] The following matters are admitted by the second defendant in her amended defence: (a) The second defendant is and was at all material times, the registered proprietor of Lot 8 on SP , County of Flinders, Parish of Uxbridge, Title Reference (the property); 1 Affidavit of N Keys, CFI 50 at [2]. 2 Counterclaim at [17].

4 4 (b) (c) (d) The plaintiff is and was at all material times the mortgagee of the property under the registered mortgage No (the mortgage) executed by the second defendant on 13 February 2006 and the plaintiff on 14 February 2006 and registered in the office of the Registrar of Titles on 13 April 2006; The mortgage was subject to the terms and conditions set out in the standard terms document No filed in the office of the Registrar of Titles (the Memorandum); The Memorandum included the terms that: (i) The second defendant is in default if: (A) The second defendant does not pay the amount owing when due for payment; (B) The second defendant does something the second defendant agreed not to do, or the second defendant does not do something she agreed to do under the mortgage or another agreement covered by the mortgage. (ii) If the second defendant is in default for more than one day and: (A) The plaintiff has given the second defendant a default notice allowing the second defendant a period of at least 31 days from the date of the notice to remedy the default; and (B) Any notice is not complied with; then the plaintiff may do any or more of the following in addition to anything else the law allows the plaintiff to do as mortgagee, at its option, without the need to give further notice or demand and despite any agreement to the contrary: (A) Treat the amounts owing as immediately due and payable; and (B) Sue the second defendant for the amount owing. 3 (e) The plaintiff as lender and the second defendant as borrower entered into the home loan facility on 13 February 2006, pursuant to which the plaintiff provided financial accommodation to the second defendant up to the sum of $463,000; (f) (g) The home loan facility is subject to the terms and conditions contained in the letter of offer dated 17 January 2006, the facility agreement details and the facility agreement general conditions dated November 2005; The general conditions of the facility agreement state The borrower is in default if you do not pay on time any amount due under this agreement or another loan agreement you have with us ; and 3 I note that the second defendant also pleads further terms contained in the Memorandum in paragraph 5 of the amended defence.

5 5 (h) The general conditions of the facility agreement state that if the borrower is in default a notice may be given stating that a default has occurred, and if that default is not remedied the total amount owing becomes immediately due for payment notwithstanding other requirements that the borrower may then be sued for that amount and/or the security enforced. [9] The second defendant pleads additional terms of the facility agreement and that the Uniform Consumer Credit Code applies to the loan agreement. 4 Matters in dispute [10] The defence raised by the second defendant is that misrepresentations were made by the plaintiff. 5 Relevantly the amended defence pleads that: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) In 2012 the second defendant was a partner in Agnes Water Ray White Real Estate Agency (the Agency); and The business being the Agency held a business overdraft with the plaintiff; and The Agency loan account held with the plaintiff was in the name of Agnes Water Ray White Real Estate Agency 1770; and In December 2012 the second defendant sought hardship assistance on the home loan facility; The plaintiff misrepresented to the second defendant that hardship assistance was not available on the home loan facility until the second defendant cleared the overdraft facility for the Agency ; At the time the plaintiff had increased the minimum monthly repayments for the home loan facility to $3,400 per month, with repayments to the business overdraft at $200 per month, in addition to repayments to the overdraft facility at $980 per month; and The plaintiff had set the repayments to the home loan facility above the scheduled principal and interest repayments; The plaintiff had set the repayments for the overdraft facility in breach of the facility terms and conditions; Due to the plaintiff s misrepresentation regarding payments required to be made to the business overdraft, to access hardship variation to the home loan facility the second defendant paid $8,000 into the business overdraft held with the plaintiff; Had the plaintiff not made the misrepresentation the second defendant would have paid the $8,000 into the home loan facility; Following the payment of $8,000 being made the plaintiff failed to make good on its promise to effect the requested variation to the home loan facility; 4 Amended defence at [36] [37]. 5 Amended defence at [37].

6 6 (l) On 12 September the plaintiff misrepresented to the second defendant that if she made a payment of $22,000 to the home loan facility, the plaintiff would agree to vary repayments from $3,400 per month (above the principal and interest payments) to the interest only rate to assist the second defendant during a period of financial hardship; (m) As a consequence of the misrepresentations, the second defendant paid $22,000 into the home loan facility on the 13 September; and (n) Notwithstanding the payment being made by the second defendant, the plaintiff failed to make good on its promise to effect the requested variation to the Home Loan Facility. [11] It is also pleaded that the notices of demand that were provided as to default were defective or misleading and deceptive but the pleading fails to identify how the notices were misleading and deceptive. [12] The second defendant also claims that the conduct of the plaintiff was unconscionable although that conduct does not all relate to the home loan facility. Unconscionable conduct is pleaded in paragraphs 40 to 55 of the amended defence. While it is difficult to discern what the conduct is which is actually said to be unconscionable, the defence would appear to be on the basis that: (a) (b) (c) (d) (e) (f) (g) The second defendant was refused access to the external dispute resolution during negotiations concerning the terminated overdraft facility; The plaintiff did not provide genuine consideration of the defendants full financial situation and the plaintiff s subsequently breached clause 25.2 of the Code of Banking Practice (2004); The second defendant was disadvantaged by misrepresentations made by the plaintiff in calculating and communicating the relevant arrears information relating to the home loan facility whereby the plaintiff relied on any errors resulting from that misrepresentation to deny its previous promise to vary the repayment types for that facility; The plaintiff failed to inform the second defendant of any relevant information such as the availability of referring the dispute to the relevant external dispute resolution scheme, being the Financial Ombudsman Service (FOS); The second defendant suffers from a hearing impairment; the plaintiff failed to provide the second defendant with access to a service that enabled her to fairly deal and negotiate with the bank as to the repayments to the loan during the period of hardship assistance and the plaintiff s conduct was excessive and unjust in all of the circumstances, which includes the fact that the second defendant was suffering a physical disability, namely a hearing impairment; The second defendant was further disadvantaged by the plaintiff s misrepresentations, being unduly influenced to deposit moneys into the agency overdraft to access hardship assistance on the home loan facility; The second defendant was disadvantaged by the plaintiff s misrepresentation leading to the payment of $22,000 to the home loan facility on 13 September

7 being a sum borrowed from a third party and only provided on the basis that the funds would affect the requested variation of the home loan facility; [13] It is alleged by the defendants that, had the plaintiff not engaged in the unconscionable conduct, the second defendant: (a) (b) (c) (d) Would have overcome her financial difficulties; Would not have suffered financial loss relating to the handling of the dispute; Would not have suffered ongoing substantial stress and inconvenience relating to dealing with the dispute between 2012 to the current date; and Would not have suffered stress related complications affecting her hearing impairment. [14] Paragraph 59 of the amended defence seeks, where permitted, a set off against any relief granted to the plaintiff as a result of any or all of the relief claimed within the counterclaim. [15] The counterclaim seeks relief in relation to the alleged misleading and deceptive conduct and unconscionable conduct alleged, at least in part in the amended defence. Summary judgment [16] The principles of summary judgment are well-established. Pursuant to r 292(2) of the UCPR, the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff s claim and may make any other order the Court considers appropriate if the Court is satisfied that: (a) (b) The defendant has no real prospect of successfully defending all or part of the plaintiff s claim; and There is no need for a trial of the claim or part of the claim. [17] In Deputy Commissioner of Taxation v Salcedo, 6 Williams JA (with whom McMurdo P and Atkinson J agreed) stated: ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at trial; if that is established then the matter must go to trial. [18] The onus is on the applicant to prove the claim, but once a prima facie case has been made out entitling the applicant to judgment, then the evidentiary onus shifts to the respondent. 7 In Willmott v McLeay, 8 Holmes JA 9 (with whom Fraser and White JJA 6 [2005] 2 Qd R 232 at [17]. 7 LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [22] per White JA (with whom Margaret Wilson AJA and Ann Lyons J agreed). 8 [2013] QCA As Her Honour then was.

8 8 agreed) concluded that even where the requirements of r 292(2) are met, the Court retains the ultimate discretion in deciding whether to award summary judgment. 10 [19] In the present case the plaintiff submits that summary judgment ought to be granted because: (a) (b) (c) (d) There is evidence to support the relevant allegations in the plaintiff s statement of claim; The allegations of fact made in the amended defence are not supported by evidence; The conclusions of law contended for in the amended defence are not supported by the material facts pleaded; and The second defendant has not placed before the Court evidence of any matters that would justify resisting the plaintiff s claim and the plaintiff submits that there is no such evidence. [20] While summary judgment was sought in relation to the claim for moneys owing under the home loan facility and recovery of possession of the property securing the home loan facility, the plaintiff did not seek summary judgment in relation to the overdraft facility or the second defendant s counterclaim. Those matters were the subject of a strike out application where liberty to replead was not opposed. Both the defence to the claim of default on the home loan facility and the counterclaim plead that the plaintiff has engaged in misleading and deceptive conduct and potentially unconscionable conduct in respect of the home loan facility. That required me to consider the potential for any repleaded counterclaim to raise a potential defence to the claim of default with respect to the home loan facility, in determining whether to grant summary judgment. The prospect that the second defendant may improve her position by proper amendment to the pleadings is a basis upon which summary judgment may be refused. 11 [21] The fact that the second defendant is self-represented, albeit with the aid of Ms Keys, is a matter which requires the Court to exercise caution to ensure that she is not deprived of the opportunity to have her claim, if any, determined according to law. However in doing so, one must also recognise that the Courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to other parties. 12 The function of pleadings is to ensure procedural fairness by ensuring that a case is pleaded in accordance with the law and the procedural rules of this Court so that the other party is aware of the case it must meet. Preliminary matter [22] At the outset of the hearing the plaintiff objected to lengthy affidavits of the second defendant and her advisor, Ms Keys, which had been served on 10 July The plaintiff s material had been served on 22 May That was some three weeks in advance of the time ordered by the Court on 28 March By that order, the second defendant was to file and serve her material by 30 June 2017 and any material in reply 10 See discussion at [15] [17]. 11 Chen v ANZ Banking Group Ltd [2001] QSC Robertson v Hollings (Imagination Television Ltd) & Ors [2009] QCA 303 at [11].

9 9 was to be filed and served by 7 July A large amount of material was served late and at the hearing the second defendant raised other affidavit material previously filed but of which she had given no notice to the plaintiff. I determined that the application should proceed on the basis that the second defendant could rely on the material referred to in her submissions. The plaintiff then made a largely successful objection to the material referred to as collection notes on the basis that it was without prejudice material provided to the Financial Ombudsman Service. 13 Although the objection was largely successful, it appears that a number of those documents which are said to consist of collection notes containing, inter alia, conversations between officers of the bank and the second defendant may be disclosable in this litigation. The material was relied upon by the second defendant particularly to support the case that the plaintiff had made representations which were said to be misleading and deceptive. [23] While the objection of the plaintiff was upheld it resulted in the Court being aware such documents exist and that they may be relevant to the second defendant s claim, without being able to ascertain whether that is in fact the case. I therefore have to consider whether there is a prospect that the disclosure of any of that material could affect the considerations going to the granting of summary judgment, particularly in terms of the submission made by the plaintiff that the second defendant had no evidence to support her claim. The plaintiff s case [24] The plaintiff has led evidence of the default of the home loan facility and the issuing of notices of demand which were not complied with by the second defendant. [25] Ms Valentine-Vijendra 14 is a senior recovery associate in the small business recoveries team of the plaintiff. On the basis of her review of the documents contained in the paper and electronic file maintained by the plaintiff in relation to the proceedings, and her personal knowledge, she states that a payment was made to the home loan facility in the amount of $2,000 on 22 September No further payments in respect of the home loan facility were received from that date until 4 April She further states that the bank received payments on the home loan facility of $1,018, $1, and $1,516 on 4 April 2016, 2 May 2016 and 1 June 2016 respectively, and that no further payments in respect of the home loan facility had been received after that date. 15 The latter payments were not made on the basis of any arrangement with the plaintiff. The evidence establishes that prima facie the second defendant was in default of her obligations under the facility terms. [26] The affidavit of Ms McKee confirmed the outstanding amounts which were the subject of the notice and letter of demand. 16 The payout figures were confirmed by the affidavit of Ms Eruera on the basis of the payout figures recorded on the plaintiff s electronic records which were the figures used in the notices of demand. 17 In respect of the home loan facility, there is no evidence that the amount outstanding is incorrect. 13 Clause 7.7 of the Financial Ombudsman Service Terms of Reference. 14 Who provided an affidavit in these proceedings, which is CFI CFI 31 at [6]. 16 Affidavit of A McKee, CFI 5 at [17] [19]. 17 Affidavit of H Eruera, CFI 4, see [4], [5], [6], [7], [13] and [14].

10 10 [27] Prima facie the bank is entitled to judgment on the home loan facility and to recover possession pursuant to the terms of the mortgage. [28] The gravamen of the plaintiff s contention is that it is entitled to summary judgment because the defendant s case lacks any proper factual basis and the pleaded case as to causation cannot give rise to the damages claimed. The plaintiff complains that the second defendant has not provided any sworn evidence deposing as to a factual basis supporting the allegations of misrepresentations being made and of defects in the default notice. The plaintiff contends that reference to such representations in vague terms in paragraphs 44 to 116 of an unsworn affidavit of the second defendant does not give details of the conversations which allegedly occurred. [29] According to the plaintiff, even if one accepts the matters in paragraphs 37 to 39 of the amended defence, which plead the conduct said to constitute the misrepresentations, those matters did not cause the second defendant to fail to pay the amounts owing over several years nor excuse the failure to pay. The alleged misrepresentations were made in 2012 and on a non-specified date in September. 18 According to the plaintiff, the conduct complained of cannot be of any relevant causal effect for the second defendant s failure to pay the amount owing on the home loan facility. [30] There is no doubt, given the history of the matter, that the plaintiff has sought particulars of the allegations and raised the deficient nature of the previous defence on numerous occasions in 2015 to The amended defence and counterclaim were struck out by consent in May 2016 and the defendants were given the opportunity to replead. [31] The second defendant in an unsworn affidavit outlines the facts which have been pleaded in the amended defence, albeit in vague and general terms. The submission by the plaintiff is that the Court should be reluctant to place any weight on the allegations as they are unlikely to be proved to be true, particularly given the absence of any contemporaneous records of such conversations. That however is a matter for trial. [32] In terms of the contention that the second defendant has not met the evidential onus in relation to her defence of the claim of default on the home loan, there is also a possibility that some of the evidence may be available with disclosure particularly of the collection notes. The lack of particularity and factual evidence provided by the second defendant is a particular focus of the plaintiff s contention that it should be granted summary judgment. While the plaintiff submitted that the second defendant had not identified what the documents are and how they would assist her claim, she has raised the collection notes in her submissions in support of the claim of misleading and deceptive conduct. As stated above, that evidence was excluded as it was provided to FOS on a without prejudice basis, but it may still be disclosable in this litigation. Those documents may provide evidence supporting the second defendant s case, given that they appear to be the plaintiff s notes of the progress of the accounts and its dealings with the second defendant. This should not be taken to suggest that the second defendant can avoid pleading material facts or providing proper particulars 18 It would appear the allegation pertains to 12 September 2013 given the reference in [49] of the counterclaim. 19 Affidavit of Golinelli, CFI 6, WXG-10, 11, 13, 17, 19, 25, 29, 30 and 32.

11 11 on the basis of the non-disclosure of such documents. The second defendant is obliged to plead her case with adequate facts to support the allegations made. She is not permitted to defer doing so on the basis that the plaintiff s documents may disclose such a case. It is relevant in the context of the present application because the plaintiff submits that the second defendant has provided no evidence to support her case nor identified any prospect of doing so. [33] Given the above, I will proceed to consider the application for summary judgment, by assuming that the second defendant is able to factually support the matters raised in defence of the home loan facility in order to determine whether she has raised a defence or may raise such a defence by amendments which has any real prospects of success. This approach considers the second defendant s case at its highest. Of particular relevance to this consideration is the contention of the plaintiff that even if the second defendant s case is considered at its highest, the matters raised by the second defendant have not caused the second defendant to default under the home loan facility. [34] In this regard, the principal arguments contended for by the plaintiff are that: (a) The second defendant has been in default and has made only 3 payments since September 2014 and has failed to meet even the interest only payments; 20 (b) (c) The pleading that the notice of default and demand are defective and misleading and deceptive are speculative and the evidence of the plaintiff establishes that the notices are correct; The pleading of unconscionable conduct does not plead an arguable case nor give rise to any relief which would negate the default by the second defendant under the home loan facility. [35] The matters pleaded in the amended defence with respect to the home loan facility are that the second defendant made two payments, one of $8,000 and one of $22,000, to the plaintiff in reliance on separate misrepresentations said to be misleading and deceptive. The first payment of $8,000 was to pay the business overdraft for the Agency of which she was a partner, after allegedly being told by a representative of the plaintiff in or around December 2012 that payments owing on the Agnes Water Ray White Real Estate 1770 facility needed to be finalised before the plaintiff would vary the home loan facility of the second defendant to interest only repayments to assist with her financial hardship. The second defendant submits that she then made that payment in reliance on the representation and would not have done so otherwise, and that the plaintiff did not subsequently vary the repayment so as to reduce the repayments on the home loan facility following that payment being made. [36] The second defendant further alleges that on 12 September, the plaintiff represented to the second defendant that if she made a second lump sum payment to the home 20 In that regard the plaintiff was pointed to the fact that for the 31 May 2016 bank statement, it states that the debit interest for the financial year to date was $20, which would, even on the second defendant s pleaded case, be the amount that should be paid if the plaintiff had agreed to interest only payments as it had represented. Payments made after September 2014 by the second defendant did not meet that amount and the second defendant did not present any evidence that she could have paid that amount or was unable to do so due to the plaintiff s conduct.

12 12 loan facility of $22,000, the plaintiff would vary the home loan facility repayments to interest only. Accordingly the second defendant made the payment but the plaintiff did not vary the repayments required to be made. 21 [37] The amended defence does not plead in [37] how the alleged misrepresentations caused the second defendant to be in default of the home loan facility. The counterclaim does however plead the loss or damage caused by the two misrepresentations. [38] The consequence of the plaintiff s conduct complained of in relation to the payment of the $8,000 is pleaded in paragraph 48 of the counterclaim, namely that the second defendant: (i) would not have made the payment; and (ii) may have taken steps to dispose of the security property for the home loan facility whilst property prices were increasing. It is further pleaded in (iii) that she was denied the opportunity to manage other debts and improve her financial position. In (iv), it is alleged that, had the misrepresentation not taken place, the second defendant would have sold the property for a value of not less than $700,000, paid down all the debt owed to the plaintiff and obtained a net positive outcome of approximately $160,000. There is a further particular of damage in (v) which is incomprehensible. [39] Paragraph 54 of the counterclaim pleads the consequences of the second alleged representation and the particulars of damage plead, inter alia, that had the representation giving rise to the payment of $22,000 not been made: (i) the payment would not have been made; (ii) the second defendant may have sold the property; (iii) the second defendant lost the opportunity to manage other debts and improve her financial position; and (vi) the second defendant would have sold the property for a value of not less than $600,000, paid all the debt owed to the plaintiff and obtained a net positive outcome of approximately $60,000. [40] It appears that some relief was given to the second defendant by the plaintiff to make interest only repayments in November 2013 but only until February 2014, on the basis that the second defendant was to sell the property, which the second defendant was unable to do, at least for a sufficient value to clear the debt. 22 [41] The only evident basis upon which the above loss could have affected the second defendant avoiding default of the home loan facility in reliance on the misrepresentations is if she could have, at the time the representations were made, taken other steps to meet her obligations under the home loan facility if she had not paid the $8,000 or $22,000 in reliance on the representations to avoid default, which is suggested by (iii) of the relevant particulars of damage in the counterclaim, although it is not adequately particularised. Given the amount of the payments which could have served as repayments for a period of time I am not persuaded on the basis of the evidence before me that such a claim cannot be properly raised and pleaded by the second defendant. [42] There is presently little else to suggest that the second defendant would have been in a position to do anything to avoid the home loan facility being in default and there is a strong case for the granting of summary judgment against the second defendant in relation to the home loan facility if the second defendant is unable to plead an 21 The year is not nominated in the amended defence but it is evident from the pleading of the same misrepresentation in the counterclaim that it was September See [66] of the counterclaim: Third Request.

13 13 adequately particularised case that she would have been able to avoid the home loan facility being in default by taking other steps. I have outlined the difficulties with the alleging she would have successfully sold the property below. [43] Contrary to the second defendant s present approach, such a case cannot be premised on the plaintiff having fulfilled its alleged representations to grant hardship assistance and reduce the payments to be made. [44] In determining whether there is a causal connection between the alleged offending conduct and the loss or damage said to have been suffered, the person concerned must show that they have been induced to do something or refrain from doing something which gives rise to damage or have been influenced to do or refrain from doing something giving rise to damage by the conduct. 23 The question of what the position would have been but for the misrepresentation may have relevance in assessing whether the alleged conduct caused the loss. [45] There is a real question as to whether the alleged misleading and deceptive conduct caused the second defendant to be in default, given that the second defendant stopped paying any repayments in September 2014 and only made three repayments in That suggests that even if the alleged misleading and deceptive conduct had not taken place, the second defendant would have still been in default. When the Court asked the second defendant about the lack of payment she stated, inter alia, Well, why would you pay any money when you ve been when you ve been bullied the whole time? 24 However, if the second defendant is able to properly articulate a case that if the alleged misrepresentations had not been made she could have taken steps to manage her other debts and improve her financial position such that she may have been able to avoid default of the home loan facility, that will raise a triable issue. [46] There is presently no reasonably arguable defence disclosed by [37] of the amended defence. In addition to the matters considered above, the pleading of the alleged misrepresentations has not been adequately particularised for the reasons set out in relation to paragraphs 40 and 49 of the counterclaim. Paragraph 37 presently has a tendency to prejudice or delay the fair trial of the proceedings. [47] Paragraphs 38 and 39 of the amended defence plead that the notice of demand that was issued was defective and misleading and deceptive and denies that the second defendant was in breach because of that fact. It pleads that disclosure is required to complete the pleading. [48] To the extent that it is said that the notice provided to the second defendant was misleading, no particularisation has been given as to how it was misleading, notwithstanding continued requests by the plaintiff for the second defendant to particularise the basis upon which it is said to have been misleading. 25 In this regard I note that the affidavit of Ms Valentine-Vijendra confirms the amounts pleaded in the statement of claim. There is no evidence that the notice was misleading. It is a matter of bare assertion. The unsworn affidavit of the second defendant did not set out the basis for the assertion nor does the pleading Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR, T1-36/ Affidavit of William Golinelli, CFI 6, WXG-10, 11, 13, 17, 19, 25, 29, 30 and Affidavit of William Golinelli, CFI 6, WXG-14 and WXG-24.

14 14 [49] At present, paragraphs 38 and 39 are without any pleaded factual basis. The second defendant in order to plead such a case must plead some facts suggesting that the notice was defective and misleading and deceptive and how she relied upon such a notice. Those are matters for which she must have sufficient facts in order to plead such a case now even if some particulars are to be provided after disclosure. At present there is no reasonably arguable defence disclosed by those paragraphs. [50] I am not presently satisfied on the state of the evidence that the second defendant has no prospect of pleading a case supported by facts which has some prospect of success or that it is so devoid of any factual basis that summary judgment should be granted. The second defendant s unsworn statement does provide some support for the alleged misrepresentations having been made, albeit in insufficient detail, and some of the matters raised in the particulars of damage in the counterclaim may, if supported by particulars of fact, raise a defence to the alleged default by the second defendant under the home loan facility. In that event, there will be a triable issue. Whether that proves to be the case or not will be evident when the second defendant repleads the amended defence and counterclaim. Granting summary judgment now in the face of liberty to replead being given for the counterclaim may lead to conflicting decisions notwithstanding the limited relief sought for the counterclaim. While it was a finely balanced decision, a party must meet a high bar to obtain summary judgment and in this case it presently has not been met. [51] I will however strike out paragraphs 37 to 39 for the reasons set out above. [52] The second defendant also submitted that summary judgment should not be granted because it is not possible to decide fairly the issues affecting just the home loan facility without considering matters relating to the overdraft facility which she says impacted on her capacity to meet home loan repayments. That case has not been articulated. It is difficult to see how such a case could be pleaded since there are two different facilities which were granted to two different parties such that the second defendant holds the primary liability under the home loan facility and is guarantor of the overdraft facility. While the second defendant may perceive that the matters are interconnected, whether there is a pleadable case is a different question and I would not have refused summary judgement on this basis. Strike out application [53] The applicant seeks to strike out a number of paragraphs in the remainder of the amended defence and counterclaim. The plaintiff provided a schedule of its objections to each paragraph, having set out the principles relating to a strike-out. In relation to the strike out application, I will go through paragraph by paragraph. Amended defence [54] Paragraph 6(a): a complaint is made that the pleading denies the plaintiff s claim to that security on the basis that it is unclear whether the pleading is referring to either the guarantee or the mortgage and does not provide a basis upon which the defendants deny the plaintiff s entitlement to security. On a proper analysis, paragraph 6(a) evidently refers to the mortgage as security for the guarantee. The second defendant has stated that there are other legal obligations which may affect the operation of the security. This contention presumably goes to the reference to liability of the second defendant. The defence is unresponsive to what is pleaded.

15 15 The statement of claim does not in [8] plead the factual basis of the second defendant s liability. As the second defendant has pleaded the legal bases for challenging the second defendant s liability rather than factual matters giving rise to those legal bases, an explanation as to the denial is not necessary, although of course, the second defendant will be limited to the legal bases which the second defendant has pleaded as basis to challenge the guarantee in the amended defence and counterclaim. On that basis I will not strike the allegation out. [55] Paragraph 7(c): the complaint made by the plaintiff is that it cannot make sense of the pleading and that it does not contain any material facts that are relevant to the issues in dispute. According to the second defendant s submission, the paragraph is intended to make a statement of fact in relation to the guarantee that the plaintiff was aware that the business overdraft was for the second defendant s late husband s business and relied on his labour. That is said to be relevant to the defence set out in Yerkey v Jones. 27 Paragraph 7(c) is however directed to the overdraft facility not the guarantee. The paragraph does not disclose a reasonable defence to the allegations as to the overdraft facility and as such should be struck out. [56] Paragraph 9: the complaint made is that the matters pleaded at 9(a) are irrelevant as the variation pre-dates the mortgage. The statement of claim pleads that the mortgage was executed by the second defendant on 13 February 2006 and by the plaintiff on 14 February It is pleaded that the mortgage also secured the moneys relating to the liability of the second defendant under the guarantee dated 14 December The variation post-dates the mortgage but pre-dates the guarantee. The complaint of the plaintiff is misdirected. The letter of 10 December 2007 appears to be relied upon as a variation of the overdraft facility which is the subject of the guarantee in [12] of the statement of claim. As to the complaint that the remaining matters do not disclose any reasonable cause of action as the matters were all within the plaintiff s rights under the relevant facilities, the second defendant s case appears to be that the plaintiff expired or terminated the overdraft facility when it was not entitled to do so as there was no expiry date and the second defendant relies on various terms pleaded in 9(c) and 9(h). I consider that while it is poorly pleaded, it does disclose a reasonable defence to which the plaintiff can respond. I would not strike out paragraph 9 of the amended defence. [57] Paragraph 10: the complaint is made that the matters pleaded in paragraph 10 do not support the conclusion contended for and do not disclose any reasonable cause of action. The second defendant claims that the defence relates to the breach of contract that followed the unjust transaction and wrongful termination of the account. There are a mixture of allegations made insofar as paragraph 10 states that the first defendant was reliant on the second defendant s husband and his ability to work, that the plaintiff breached clause 25.1 of the Code of Banking Practice when it formed its opinion on the capacity of the first defendant to pay the loan, and that in terminating the facility the plaintiff did so in breach of the overdraft facility terms and conditions. It is evident that the conclusion in subparagraph (g) does not flow from the matters preceding in that paragraph. The conflation of matters, including that the second defendant was placed in a disadvantaged position do not support the allegation that the plaintiff is unable to rely on the mortgage security for the overdraft facility. Noncompliance with the Code of Banking Practice does not of itself have the consequence that a mortgage facility cannot be relied upon. The position of the second defendant 27 (1939) 63 CLR 649.

16 16 being placed at a disadvantage by the entry into the overdraft facility also does not reveal any reasonable defence. The paragraph should be struck out as it discloses no reasonable cause of action or defence. [58] Paragraph 13: The plaintiff complains that the defendants do not plead the manner in which the plaintiff is said to have breached the Code of Banking Practice and none of the allegations in this respect are particularised such that the plaintiff is unable to identify or respond to the case pleaded against it. The second defendant contends that the plaintiff, had it not breached the Code of Banking Practice in determining the repayment capacity of the first defendant, would not have granted the loan and thus the guarantee would not have taken place. That is not what is pleaded in paragraph 13 of the amended defence. Further, paragraph 12 relates to an increase in the facility not the grant of the facility itself. The amended defence does not plead any facts supporting an allegation that the plaintiff failed to exercise due care and skill in selecting and applying the credit assessment methods and forming an opinion about the ability of the first defendant to repay the loan. If the defendant intends to pursue such a cause of action, it needs to properly set out the material facts relied upon in order to support any claim it seeks to make. Accordingly paragraph 13 should be struck out, save for the admission. [59] Paragraph 14 (save for the admission): The complaint of the plaintiff is that matters pleaded at paragraphs 14(a) and (b) are not proper bases upon which the plaintiff can be prevented from relying on the guarantee or the property. It further complains that paragraphs 14(c) and (c) (sic) fail to plead or particularise the allegations of breach. It is further said that paragraph 14(e) does not contain an allegation of fact to which the plaintiff can plead. The second defendant relies on the defence as per Yerkey v Jones in (e). In the present case, however, no basis for the principle in Yerkey v Jones has been pleaded. In order to plead a case to raise a defence under the second limb of Yerkey v Jones one must plead facts capable of establishing that: (a) (b) (c) (d) The wife did not understand the effect of the document or the nature of the transaction or suretyship; The wife is a volunteer in the transaction; The creditor has notice that the surety is a wife reposing trust and confidence in her husband; The lender has failed to take steps to explain the transaction of suretyship unless it appears that an independent third party has done so. The matters pleaded do not support such a case. [60] Subparagraphs 14(a)-(e) are directed to the position of the plaintiff in the grant of the overdraft facility in the first place and have no apparent relevance to the assertion that the plaintiff cannot rely on the guarantee. Subparagraph 14(b) raises no defence and is irrelevant. Subparagraph 14(c) suffers from the same difficulty in not pleading facts to support the alleged breach of the Code of Banking Practice. Further, to the extent that it is alleged in 14(d) that there was a series of breaches, that is not supported by any material facts. As to 14(e), further matters would have to be pleaded

17 17 to raise the Yerkey v Jones equity. Paragraph 14, save for the admission, will be struck out. [61] Paragraph 16 (save for the admission): The plaintiff alleges that none of the allegations are particularised, and that the paragraph fails to plead how the plaintiff is alleged to have breached the various agreements, with the result that the plaintiff is unaware of the case it must meet for trial. The second defendant contends that the plaintiff breached the contract and went on to call in the guarantee. She claims that the action was a result of the plaintiff s breach and that the subsequent demands for repayment constitute a further breach of contract. In relation to that, subparagraph (a) does not plead the basis upon which it is said that the second defendant is not bound by the terms of the guarantee. Paragraph 15 of the statement of claim to which it responds pleads the terms of the guarantee. The second defendant does not dispute the terms of the document per sé. The pleading is unresponsive to the allegations in [15] of the statement of claim and should set out any basis as to why the second defendant is not bound by its terms. The argument of the second defendant seems to be that a breach has occurred by the plaintiff such that the second defendant is no longer bound by the guarantee. Such a case should be pleaded in a separate paragraph supported by the material facts upon which the second defendant relies to allege the breaches that have occurred and the basis upon which the second defendant says that she is not bound by the guarantee. Paragraph 16 is struck out. [62] Paragraph 18: The pleading is said by the plaintiff to refer to an incorrect paragraph in referring to 16(c), (d) and (e), to be vague and to not identify the factual basis of the alleged contravention. According to the second defendant, the plaintiff breached the statutory provisions of legislation by representing that she was in default of the overdraft account when she was not. It is alleged that she was not provided with any notices and was not in default of the loan. Matters referred in subparagraphs 16(c) and (d) do not allege any such representations. Further, there is no pleading of material facts to support any suggestion that there have been false representations made, particularly that the second defendant was in default of the overdraft facility. Paragraph 18 in its present form is embarrassing, 28 does not disclose a reasonable cause of action or defence and accordingly should be struck out. [63] Paragraph 23: This is unresponsive to any allegation. To the extent that it is said to be relevant to the defence raised by the second defendant, nothing is pleaded which shows that it is relevant to the allegations or the second defendant s defence. In those circumstances, it will be struck out. [64] Paragraph 25: The plaintiff complains that the allegations are not particularised to the extent needed for the plaintiff to respond to them, and even if they were, the matters pleaded cannot be said to have caused the first defendant s default of the business overdraft facility terms. The second defendant submits that the termination of the facility was in breach of the contract. Paragraph 25 of the amended defence pleads that in issuing the termination notice, the plaintiff was in breach because there was no default, or if there was a default, the first defendant claims that the default 28 The word embarrass reflects the language of the former O 22 r 32 Rules of the Supreme Court 1991 (Qld) and is used in the sense discussed by White JA in Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 5 at [16]. While not used in r 171 of the UCPR, the concept is still relevant as a pleading which is difficult to follow or objectively ambiguous or creates difficult for the opposite party insofar as the pleading contains inconsistencies is liable to strike out because it can be said to have a tendency to prejudice or delay a fair trial.

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