This matter is listed for hearing on 27 April. It is a case which was started in 2012. Essentially it is an application for possession and for debt recovery by the bank who is a registered mortgagee of two properties, of which Mr and Mrs Awad are registered proprietors. The matter is listed for hearing with an estimate of four days and the substantial reason why the matter is still in the list is that Mr and Mrs Awad have brought a cross claim, as they are entitled to do, alleging in various forms under statute and under the general law, that the bank, through its officers and agents, has engaged in misleading and deceptive conduct.
The gravamen of their case is that representations were made in relation to the bank's lending practices, to the effect that the bank would not advance any more than 80% of the market value of the properties. Mr and Mrs Awad say that had that been adhered to, then they would not be in their present predicament because the value of the properties would have been sufficient to cover the whole of their indebtness to the bank.
As I understand the the pleadings, the underlying factual basis for their case is that there was misrepresentation in the valuation process. That is to say that the properties was overvalued when the loans were advanced. The matter has been thoroughly case managed and in October of 2014 it was fixed for hearing. It seems that both parties have more or less complied with their obligations in terms of the timetable. I have not inquired into it too deeply, but I imagine that there may have been some default but those defaults have largely been cured and, apart from one thing I am about to address, the case seemed ready for hearing.
The one thing I have referred to is that the bank now wishes to amend its defence to the cross claim to rely upon the express terms of the loan agreement. The terms relied upon are to the effect that the valuers used by the bank are independent contractors and not the bank's agents; that the bank is not legally responsible for any representation, action or inaction by a valuer engaged to value the property; that the valuer's reports are for its sole use, by implication not for the use of the customers; and that the customer,s Mr and Mrs Awad, cannot rely upon the report or sue the bank for any error contained in them. I am paraphrasing the effect of the proposed amended pleading. These provisions may well be significant exclusion clauses capable of defeating Mr and Mrs Awad's claim to the extent which they may, and I stress "may" give a good defence to the action. It is obviously important, and in the interests of justice, that the bank be allowed to reply upon them.
I will observe in passing that Mr and Mrs Awad rely upon statutory provisions which protect consumers in relation to financial transactions and the powers of the Court in relation to matters covered by that legislation are indeed wide and capable of circumventing the normal operation of the law of contract.
That leads me to the next point. Very early this morning when the matter was first mentioned, Mr Awad informed me that he and Mrs Awad have applied for Legal Aid (Exhibit 1). That application is acknowledged in letters forming part of Exhibit 1 from Legal Aid, but the application has not been processed as yet. It is impossible for me to say what the prospect is of them being granted aid, but obviously cases like this involve a great deal of technicality and even educated lay persons will often need the benefit of legal representation.
It may be that the legislation which Mr and Mrs Awad rely upon as part of the foundation for their cross claim will provide an answer to the bank's defence based on the express terms of the contract. I express no opinion about it but, if that is so, it will be necessary for them to file a reply raising any specific statutory provision upon which they rely to circumvent the express terms of the contract. For that reason I propose to fix a time for that to be done. If the time which I fix proves to be unrealistic then Mr and Mrs Awad can apply to the registrar for an extension of the timetable fixing a time. In making that last comment I bear in mind the observations of the Court of Appeal in Philip John Kelly v Westpac Corporation [2014] NSWCA 348.
Although all persons are equal before the law, and it might be said that being self represented is a misfortune, not a privilege, a judge exercising the powers of case management under the Civil Procedure Act 2005 (NSW) needs to bear in mind that lay persons, even well motivated and diligent lay persons, will have greater difficulty in preparing for a four day hearing than trained and experienced lawyers. Moreover, given the intervening Easter period and Anzac long weekend, there is less time available for Mr and Mrs Awad to obtain legal advice in relation to an amendment, if they can find someone prepared to give them advice, and to undertake any necessary further preparation that the amendment gives rise to.
Mr Awad explained to me this morning that as the hearing approached he was finding it more complex than he felt comfortable handling. I am sure that many people feel that way when they are engaged in litigation without the benefit of legal advice. However, he also indicated that he would probably need an adjournment.
Although initially resistant to the idea of an adjournment, the bank accepts that the reasoning in Kelly may well be applicable to this case and it has, I must say properly and fairly, acquiesced in the idea that the case will need to be adjourned to allow Mr and Mrs Awad the opportunity of meeting the amendment and, hopefully, of securing legal representation.
That is not the end of the matter, of course. I am bound to consider that an adjournment at this stage wastes, not only the money and time of the parties, but also public resources in the administration of justice. This hearing date has was fixed five months ago, and had this unfortunate need for an adjournment not arisen, someone else's case could have been allocated those four days at the end of April. It is doubtful whether they can be filled now. The idea that wasted Court time displaces other litigants who have an interest in an earlier hearing date is of some importance in modern thinking and I need to consider whether the other factors I have referred to, which may be taken to justify an adjournment, displace that important public interest.
It seems to me that, at the end of the day, the dictates of justice in civil litigation must largely focus upon the dictates of justice as between the parties in relation to adversarial litigation.
As I have already mentioned, the pleading of the express terms of the contract may well be a very important matter for the bank and, although it could be said that it perhaps should have realised the significance of these terms earlier, it ought not, in my judgment, be precluded from raising them now. If that occurs I accept, again referring to Kelly, that that puts Mr and Mrs Awad in a difficult position and that their position is all the more difficult because they are self-represented and that is entitled to some consideration although it cannot be decisive.
I bear in mind that at [42] of Kelly the Court of Appeal said:
It was also relevant, in our view, for the primary judge to take into account the relative position of the parties in preparing the case for the imminent trial. All are equal before the law. Courts cannot prefer the interests of self-represented litigants over those who are legally represented: Reisner v Bratt [2004] NSWCA 22 (at [4]) per Hodgson JA (Ipp JA agreeing); Malouf v Malouf [2006] NSWCA 83 (at [94]) per Mason P (McColl and Bryson JJA agreeing). Nevertheless, that does not mean that in considering the dictates of justice (s 58, CP Act) courts ignore the disparity which can exist between the resources available to a well-funded litigant such as Westpac and a self-represented litigant.
Bearing those things in mind, I consider the proper order for me to make is to vacate the hearing date of 27 April. I propose to bring the matter before the registrar before then because I feel that the case needs to be fairly closely case managed so that this adjournment does not cause it, in the vernacular, to "go off the rails".
It seems to me that it is in the interests of all the parties that the matter be listed for hearing as soon as reasonably practicable. For those reasons I make orders in accordance with the short minutes of order prepared by Mr Jammy of counsel, for which I am grateful, signed by me and dated today. I will read them out so that there will be no mistake.
1. Plaintiff/cross defendant is granted leave to file and serve an amended defence to the cross claim in the form marked A by no later than 9 April 2015;
2. The defendants/cross claimants are to file and serve any reply to the amended defence to the cross claim strictly only in relation to the amendments made pursuant to these orders no later than 20 April 2015;
3. The plaintiff/cross defendant is to pay the defendants/cross claimants' costs thrown away by virtue of the amendment contained in the amended defence if otherwise entitled;
4. The four day hearing set down for 27 April 2015 is vacated;
5. The matter is listed before the registrar for allocation of a hearing date on 20 April 2015.
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Decision last updated: 08 April 2015