Australian and New Zealand Banking Group Limited v Jeff Manny [2012] ACTSC 205

Supreme Court of the ACT|2012-10-15|Before: Refshauge ACJ, Burns J

1. Pursuant to r 6700(3)(a) of the Court Procedures Rules 2006 (ACT), the evidence in these proceedings is to be presented by affidavit.

2. The defendant, Mr Manny, is to file and serve his defence on or before 16 November 2012.

3. The plaintiff, Australia and New Zealand Banking Group Ltd, is to file and serve any affidavits on which it proposes to rely on or before 7 December 2012.

4. The defendant, Mr Manny, is to file and serve any affidavits on which he proposes to rely on or before 25 January 2013.

5. The plaintiff, Australia and New Zealand Banking Group Ltd, is to file any affidavits in reply on or before 1 February 2013.

6. The matter is to be listed for further directions on 8 February 2013 at 9.30 am.

1. On 14 March 2012, Burns J dismissed an application in these proceedings by which the defendant, Jeff Manny, sought to have the receivers of property belonging to companies that he formerly controlled and administrators appointed to those companies joined to the proceedings and other orders. Earlier today, I dismissed an application for leave to appeal against that decision (see Manny v Australian New Zealand Banking Group Ltd [2012] ACTCA 40). As a consequence, I have been asked to give directions in order that these proceedings may be pursued with efficiency and expedition.

2. Proceedings were commenced by the filing of an originating claim on 27 October 2011. The proceedings seek recovery of debts said to be owed by Mr Manny under two loan agreements to the plaintiff, the Australia and New Zealand Banking Group Limited ("the bank"), and possession of a residential property apparently under a mortgage of that property entered into to secure the loans.

3. It is clear, from what I have been told, that Mr Manny resides at the property. A sealed copy of the originating claim and a copy of the statement of claim were delivered to the property on 8 November 2011 and a further sealed copy of the originating claim and a copy of the statement of claim were served on Mr Manny personally on 28 November 2011.

4. On 17 February 2012, Mr Manny filed the application referred to above (at [1]) seeking various orders. The application was dismissed on 14 March 2012 and

a similar application filed by him on 11 April 2012 was also dismissed on 20 April 2012. As also noted above (at [1]), the applications for leave to appeal against those decisions were dismissed earlier today.

5. These proceedings have not progressed since they were commenced. I have been asked to make orders that will have the effect of progressing the proceedings as is necessary. I will do so.

6. The bank, through its counsel Mr A Casselden, has sought an order, under r 6700(3)(a) of the Court Procedures Rules 2006 (ACT), that the evidence in the proceedings be presented by affidavit. I have considered this position in Hillman v Box (2010) 5 ACTLR 122. I adopt what I said in that case.

7. Mr Manny did not object to such an order. He did not, however, agree, so r 6701 of the Court Procedures Rules is not applicable. I will, however, make the order.

8. The next issue is the filing of the defence. Mr Manny has had notice of these proceedings for nearly a year. I accept that he is not represented by a lawyer and that he is challenged by legal concepts and relevance. He also objects that he has an appeal to conduct in early November 2012. He says he cannot conduct both proceedings at once. I have some sympathy with that but if he is to engage in litigation he cannot disadvantage one litigant just to meet his obligations to another.

9. In my view, it would be reasonable to require Mr Manny to file and serve a defence on or before 16 November 2012. That is very generous to him. If he does not do so, of course, the bank would be entitled to apply for default judgement.

10. As to the filing of affidavits, I will make a timetable which, though more generous to Mr Manny than is sought by the bank, will still keep the general scheme of the proposal intact. For example, the bank sought a directions hearing on Friday

1 February 2013, but the new term for this Court will not then have commenced. However, I can make an appropriate timetable to have the matter listed for further directions the following Friday.

Whether the defendant may commence any further appeals

11. I was also requested to make orders that Mr Manny be restrained by order from commencing any further appeals without the leave of the Court. While he is clearly unlikely to be deterred from frivolous applications by the risk of costs orders I do not consider the position has yet been reached when such an order should be made. I decline to do so, but if Mr Manny makes frivolous applications they will be struck out by the Court and that will provide greater justification for the making of such an order in due course.

12. Accordingly, I will make orders to give effect to these reasons, so that the proceedings are progressed efficiently and expeditiously.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Solicitor for the Plaintiff: Bradley Allen Love as agents for Gadens Lawyers

Counsel for the Defendant: The defendant appeared in person

Procedures Rules 2006

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