Bendigo and Adelaide Bank Limited v Ratana

Supreme Court of NSW|2018-08-07|Before: Adamson J, Croft J

Solicitors: Turks Legal (Plaintiff) Benjamin Horne (Defendant) File Number(s): 2015/305412

Introduction

By notice of motion filed on 19 April 2018, Bendigo and Adelaide Bank Limited (the plaintiff) sought an order against Karen Ratana (the defendant) that these proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). The plaintiff, for whom Mr Koch appeared, relied on the affidavit of Patricia Kastanias, the plaintiff's solicitor, who annexed correspondence between the plaintiff's firm and the solicitors instructed by the defendant. The correspondence explained the basis of the application for transfer. The defendant did not respond in writing to this correspondence although Mr Horne, who appeared for the defendant, told Ms Kastanias that he thought that his client would oppose the application for transfer. Before turning to that correspondence, I propose to give a brief outline of the proceedings.

The proceedings in this Court and associated proceedings in the Supreme Court of Victoria

In its statement of claim filed on 19 October 2015, the plaintiff claims moneys alleged to have been outstanding pursuant to two loan deeds entered into between a subsidiary of the plaintiff, ABL Nominees Pty Ltd (ABL), and the defendant. It is not in issue that the debt was assigned to the plaintiff by ABL. It is alleged that, pursuant to those two loan deeds, sums of money were advanced to the defendant to permit her to invest in certain investment schemes known as Great Southern Managed Investment Schemes (the schemes).
It is necessary only to summarise the schemes briefly. In essence, participants were invited to contribute to agriculture ventures with a view to obtaining relevant tax deductions and ultimately financial benefit by way of dividends. ABL advanced the moneys to the defendant. The defendant failed to make repayments in accordance with the loan deeds. The schemes failed, which led to challenges being made to the plaintiff's right to recover under the terms of loan deeds. The defendant's position was not unusual as a substantial number of individuals invested in these schemes.
A class action was commenced in the Supreme Court of Victoria on behalf of investors in the schemes (the Victorian proceedings). The defendant challenged the plaintiff's rights to recover under the terms of the loan deed by becoming a group member in the Victorian proceedings. Ultimately, the Victorian proceedings were settled by a Deed of Settlement. The Deed of Settlement expressly provided that all group members (which included the defendant) acknowledged and admitted the validity and enforceability of the loan deeds. The Deed of Settlement was approved by Croft J of the Supreme Court of Victoria on 11 December 2014. His Honour had been case-managing the proceedings and has, since their settlement, been case-managing the remaining claims by parties, such as the plaintiff, who have advanced moneys to persons who borrowed funds to invest in the schemes.

Whether the proceedings ought be transferred

Mr Koch submitted on behalf of the plaintiff that the interests of justice support a transfer to the Supreme Court of Victoria because Croft J is presently managing a significant number of matters which arise out of the schemes and is, accordingly, best placed to conduct the present proceedings efficiently and effectively in that court. Mr Koch submitted, and Mr Horne accepted, that the proceedings largely concern the construction of the Deed of Settlement and whether, on its terms, the first defendant is bound by the terms of that deed.
The defendant, for whom Mr Horne appears, resisted the application for transfer on several bases. He submitted that the interests of justice favour the refusal of the transfer as the defendant is resident in New South Wales; her solicitors are based here; and counsel briefed at the hearing is also based in Sydney. The matter has already been allocated a hearing date of 4 September 2018 with an estimate of two days. It is accepted by the plaintiff that if the proceedings are transferred, the matter will be heard later than 4 or 5 September 2018. Mr Horne submitted that there was no point transferring the proceedings at this late stage and that such a transfer would cause additional stress and anxiety to the defendant.
It is not possible to determine, by reference to the defence filed on behalf of the defendant on 2 March 2016, exactly what matters are in issue. However, I note that there is no allegation of a defence pursuant to the Contracts Review Act 1980 (NSW) such as would warrant this Court varying the terms of the Deed of Settlement. The real question is, as s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act provides, whether it is in the interests of justice that the proceeding be determined by the Supreme Court of Victoria or this Court. On the one hand, there is to be weighed in the balance the fact that the hearing date has already been allocated and is imminent. On the other hand, Croft J, in the Supreme Court of Victoria, is plainly very familiar with these matters. It could be expected that this matter could be dealt with at least as efficiently in the Supreme Court of Victoria, if not more so than in this Court, having regard to his Honour's familiarity with the Deed of Settlement. On the other hand, it is estimated by the parties that, having regard to the dismissal of the cross-claim, the principal claim will take in the order of a day to hear and therefore can be dealt with efficiently in this Court.
It is regrettable that the motion that was filed on 19 April 2018 could not have been dealt with earlier. I accept the explanation given by Mr Koch that the delay in obtaining a listing for this application was caused by the view that it was preferable that the application by the cross-defendant to have the cross-claim dismissed be determined before the application for transfer. I note that the cross-claim was dismissed on 28 June 2018.
I regard the interests of justice as being fairly evenly balanced. Were it not for the allocation of a hearing date and its imminence, I would have been disposed to transfer the matter to the Supreme Court of Victoria. However, I am persuaded by the submission of Mr Horne that it would not be in the interests of justice to require the defendant to go to Melbourne and be required to obtain a further hearing date some way down the track, given that she would otherwise be entitled to have her matter heard in this Court on 4 September 2018.

Costs

As to the question of costs, the defendant seeks an order for costs in her favour. Mr Koch submitted that it would be more appropriate to order that the costs be costs in the cause or to make no order as to costs. I do not consider that the costs should be costs in the cause because it would link this application, which is discrete, to the result of the proceedings. Mr Koch submitted that there had been no written response to the correspondence from his instructing solicitor to the defendant's solicitor. He contended that the plaintiff was deprived of the opportunity of appreciating what points would be made against the notice of motion. The plaintiff's solicitors may have felt obliged to make this application in order to draw this matter to the Court's attention so that the Court could decide whether it was in the interests of justice to transfer this matter to the Supreme Court of Victoria. Mr Horne submitted that, although there is no recorded response to the plaintiff's solicitor's correspondence, he did in fact communicate that he was likely to be instructed to oppose the motion by his client.
Where one party has drawn the attention to another party of relevant matters which are highly germane to an application for transfer and there has not been any substantive response, there is, in my view, a reason to depart from the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. The correspondence from the plaintiff's solicitor was sent in April 2018 and the notice of motion was filed on that date. In my view, it was incumbent on the defendant's solicitor to communicate his client's attitude to the motion, together with the bases on which the motion was to be opposed. As this did not occur, I consider that the appropriate order is that there be no order as to costs.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the plaintiff's notice of motion filed on 19 April 2018. 2. Make no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2018

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